Florida’s state court system is creating a pilot program to hold civil jury trials via remote technology. Up to five trial circuits across the state will participate.
This is a nod to ongoing concerns about reopening courthouses, but it also creates the possibility of some jury trials remaining fully online even after the pandemic subsides. The more experience that courts have with remote trials now, the more they will be able to assess the strengths and weaknesses of remote trials going forward. This pilot program will be worth watching carefully.
A guest post by Lawrence Friedman
As state bar examiners attempt to navigate the administration of this summer’s examination through the challenges posed by the novel coronavirus, some – including New York and Massachusetts – have attracted no small amount of attention by seeking to give priority placement to graduates of in-state law schools. Writing in Justia, Dean Vikram David Amar has argued that such restrictions are unconstitutional because they violate the dormant commerce clause. I have no quarrel with his analysis and here simply anticipate, and respond to, another potential argument defending a preference for in-state law school graduates.
Under the dormant commerce clause, states may not expressly prefer in-state businesses to the disadvantage of their out-of-state counterparts. As Dean Amar notes, the policies embraced by states like New York and Massachusetts, which “explicitly treat all in-state law schools differently than all out-of-state law schools,” effectuate clear discrimination between local and out-of-state interests.
When state rules affirmatively discriminate against interstate commerce, they are subject to demanding judicial scrutiny: as the Supreme Court explained in Maine v. Taylor, the state must carry the burden of demonstrating both that the rule serves a local purpose that is effectively compelling, “and that this purpose could not be served as well by available nondiscriminatory means.” Continue reading “States Cannot Prefer Graduates of Their Own Law Schools for Bar Exam Seats”
Nevada has a long and storied history of dreadful judicial campaigns, lagging perhaps only New York and Illinois in overall election dysfunction. As one relatively recent example, three years a Las Vegas judge falsely claimed the endorsement of Dwayne “The Rock” Johnson in a badly photoshopped advertisement.
The latest questionable developments come in the form of two complaints filed with the state judicial review board by current judicial candidates, alleging that some of their opponents have violated various campaign and ethics rules. The more intriguing of the two complaints alleges that Family Court candidate Margaret Pickard posted a video to Facebook in which she sat on the bench in a courtroom in an outfit closely resembling a judicial robe — intimating, incorrectly, that she was already an incumbent judge.
Ms. Pickard did not actually don a judicial robe for her ad, but her dress is strikingly similar to a judicial garment. In any event, I will let readers decide for themselves.
Courthouses around the country are slowly reopening, with a panoply of health and social distancing guidelines. One of the most basic rules is that everyone in the courthouse must wear a face mask — a wholly sensible approach from a public health perspective. But mandatory face coverings also pose interesting new challenges for lawyers, judges, and juries, because of our reliance on facial expressions to assess emotion and credibility.
Courts are awakening to the problem, and trying to develop creative ways to permit certain participants to uncover their faces while protecting public health. One possible solution is to conduct voir dire by videoconference. Another is to cover witness and jury boxes with clear plexiglass, an admittedly second-best solution. As one Texas judge noted,
in Harris County, the courts are already installing plexiglass to protect the clerks, court reporters and bailiffs, who sit in high-traffic areas of courtrooms.
“I joke our courtrooms are going to look like a hockey rink,” he said. “We’re not putting plexiglass up around the jury box, because we haven’t figured out how we are going to conduct the jury trials. This is an issue that’s causing a lot of concern, because people sitting in the jury box are sitting shoulder-to-shoulder.”
Whatever the solution, the courtrooms will certainly feel different for a while.
Yesterday, Texas held the first jury trial to be conducted exclusively through Zoom videoconferencing. The one-day summary jury trial was also livestreamed on YouTube.
This represents a major development, given that every other jurisdiction has simply postponed jury trials until courthouses reopen. And judges are increasingly opening to the idea of remote trials in some form. On the other hand, some judges remain steadfastly opposed to trials outside the physical courtroom, and with courthouses beginning to reopen in the coming weeks, it remains to be seen how common videoconference trials will become.
State trial courts in thirty New York counties are preparing to gradually reopen starting next week. Health precautions, including entry screening, masks, hand sanitizer, and social distancing, will obviously be the norm.
Last week, the Texas appeals courts and judicial agencies suffered a ransomware attack that disabled their IT network for several days. The situation was caught quickly and state court administrators created a temporary website. Officials have stressed that no personal information was stolen, and that the attack had no effect on the courts’ use of online hearings in the wake of the coronavirus pandemic.
Georgia’s state courts experienced a similar ransomware attack last July.
Although no harm seems to have come out of this latest incident, it does underscore the vulnerability of technological networks and the potential effect on the administration of justice.