empty jury box in a courtroom

The Texas courts that experiment with jury trials this summer will no longer depend upon the consent of attorneys and litigants to move to trial under a Texas Supreme Court emergency order issued Monday.

And litigators have mixed feelings about the court taking away their ability to consent to a jury trial experiment. For some, being forced into a jury trial experiment—perhaps a remote trial, in-person with precautions, or some hybrid of both—might push them to opt for a bench trial instead.

The high court had banned most jury trials through Aug. 1, except for some limited, controlled experiments, which would have gone forward only with consent from the parties. But the court's 18th emergency order removed the requirement to get the litigants' consent. It also extended the jury trial ban—except the experiments—through Sept. 1.

"If I were faced with the choice of having to participate in a mandatory experimental jury trial with a non-diverse online jury pool, I might well advise my client to agree to try the case to the judge instead, if I thought that the judge was fair and impartial," said Dallas attorney Quentin Brogdon.

He noted that he understands the court system is "between a rock and a hard place" as COVID-19 cases spike in Texas.

Related: COVID Could Prompt Litigants to Choose Bench Trials Over Juries, Thanks to Six-Month Backlog of Civil Cases

Quentin Brogdon Quentin Brogdon

"On the one hand, we need to get the courts reopened. On the other hand, we cannot and should not trample on the rights of the litigants at the courthouse," said Brogdon, partner in Crain Brogdon Rogers in Dallas. "It is one thing to require a nonbinding summary jury trial between litigants, but it is quite another thing to require a binding online trial without the consent of the litigants. We need to tread very carefully before we start mandating radical experimentation."

Pat Mizell Pat Mizell

Houston trial lawyer Pat Mizell, however, said he's fine with the change.

"Presumably the jury trial would be a small one- or two-day matter, and done by Zoom. The trial judge could still use discretion and reset the case if someone had an articulate objection," said Mizell, partner in Vinson & Elkins. "I think we are in this predicament until there is a vaccine, so we've got to figure out something to keep things moving."

David Beck David Beck

Beck Redden partner David Beck of Houston comes down somewhere in the middle. If a lawyer was scheduled for an experimental jury trial without consent, but felt that it wasn't safe for the client, jurors or himself, the lawyer would do whatever was possible to get a continuance or reschedule the matter, he explained. Beck said he would trust judges to use their discretion and only proceed if it were safe.

"The fact that they are not requiring consent does not mean that the individual judges will proceed if there's strenuous objections by the parties and their counsel in the case," Beck explained. "The way I read the Supreme Court order, the fact that consent was deleted means consent is not required, but it still doesn't mean a trial judge does not have discretion about the cases. I think it gives the judges the latitude to experiment."

Chief Justice Nathan Hecht

Texas Supreme Court Chief Justice Nathan Hecht defended the court's decision to remove the consent requirement.

He wrote in an email that it would be unfair if one litigant wanted to have a jury trial, but opposing counsel withheld consent.

"Everyone knows it's the imminence of trial that helps resolve cases. This is standard procedure we're all used to. Earlier in the pandemic, there was concern that no one be compelled to come to the courthouse at risk to health. But [the Texas Office of Court Administration's] guidelines and review process for proposed trials have minimized that risk. There is less reason for the special consent requirement," Hecht said. "Lawyers and parties can always raise health concerns, and judges will weigh them like any other request for postponement."

Read the full emergency order:

Related stories:

Texas Jury Trials to Resume This Summer Under Experimental Program

Texas is Experimenting With Jury Trials Amid COVID-19. A Dallas Litigator Says That's Better Than Nothing

Most Houston Lawyers Don't Want Jury Trials Back Before Fall, Survey Says