Articles

The Vanishing Jury Trial-Part Two

January, 2021

Some time ago, in preparation for a trial, I published an article about the vanishing jury trial.  The subject was not novel or unique.  The late Connecticut District Court Judge Mark Kravitz had also written about the subject.

Essentially, because most lawsuits, including employment civil actions, settle in 98% of the cases, attorneys get rusty in jury trial skills such as drafting effective open and closing statements and in executing the effective presentation and objection of evidence.

But another factor is now contributing to the languishing of civil jury trials that make settlements perhaps even more distant:  the COVID-19 pandemic.

Last March, when the virus hit the U.S., all industries, including legal services, were shuddered.

Courts, both federal and state, were shut down and the right to proceed to trial was suspended, even with criminal trials.

To date, while both courts have allowed cases to proceed, it has been in a fashion basically restricted to remote hearings.  State and federal civil trials have been suspended indefinitely since March, 2020.  It is doubtful that any civil or employment law trials will be conducted in 2021.

And the question remains, what will jury trials be like when they resume?  Will portions of the trial be conducted remotely through Teams or Zoom?  If so, what parts?  Will jurors be in the same court room as the judge and counsel or will they be separated?  Will attorneys be able to make opening and closing remarks to masked jurors?  How can an attorney judge credibility with a masked or remote witness?

These questions pose troubling obstacles to both plaintiff and defendant attorneys.

In the meantime, cases may continue to settle with an uncertain time frame for trial.

Or more litigants may choose to seek a quicker resolution by giving up their right to jury trial and seek popular and more expedient alternate dispute resolution procedures, such as mediation and arbitration.  For example, employment arbitration cases are usually scheduled for “trial” approximately 8-12 months from the claim for arbitration before the American Arbitration Association.

Full Disclosure:  I am an employment and commercial arbitrator with the American Arbitration Association.

One thing is certain:  the pandemic has and will continue to change the way employment law civil cases are litigated and tried in a court of law.  And civil jury trials, when they resume, will largely be scheduled many years down the road.