We have a compelling and urgent public interest need: Jury trials. We have an uncharted problem: Courthouse closures due to COVID-19, and a system increasingly hampered with a backlog of unresolved cases.
What makes the present challenge even more concerning is that there may be additional waves of the Coronavirus crisis with future, temporary shutdowns, at least until a proven and effective vaccine is introduced into the general population.
As members of the Bar, we can begin to tackle this problem with an interesting, and existing strategy.
On April 3, 2020, Seventeenth Judicial Circuit Chief Judge Jack Tuter expressed the concern that it may be quite some time before jurors are summoned back to the Broward County Courthouse to fulfill their civic obligation as finders of fact. One casualty of that projection is the Circuit Civil Division.
And with the increased jurisdiction of the County Courts, up to $30,000, litigants who seek trials by jury in those Divisions are also going be told they have to wait.
The tool we have, when modified, is Section 45.075 of the Florida Statutes, “Expedited Trials.” Before the statute was codified, your author had 7 such jury trials. They were conducted with cooperative Plaintiff and Defense counsel, working together as officers of the Court to save costs and to speed up the litigation process.
In those early days, the expedited trials proceeded according to detailed Court approved stipulations between counsel for the parties. It worked then, and it can work today if we brainstorm in ways that just a few weeks ago seemed unrealistic.
Here is the statute:
45.075 Expedited trials.—Upon the joint stipulation of the parties to any civil case, the court may conduct an expedited trial as provided in this section. Where two or more plaintiffs or defendants have a unity of interest, such as a husband and wife, they shall be considered one party for the purpose of this section. Unless otherwise ordered by the court or agreed to by the parties with approval of the court, an expedited trial shall be conducted as follows:
(1) All discovery shall be completed within 60 days after the court enters an order adopting the joint expedited trial stipulation.
(2) All interrogatories and requests for production must be served within 10 days after the court enters the order adopting the joint expedited trial stipulation, and all responses must be served within 20 days after receipt.
(3) The court shall determine the number of depositions required.
(4) The case may be tried to a jury.
(5) The case may be tried within 30 days after the 60-day discovery cutoff, if such schedule would not impose an undue burden on the court calendar.
(6) The trial must be limited to 1 day.
(7) The jury selection must be limited to 1 hour.
(8) The plaintiff will have no more than 3 hours to present its case, including the opening, all testimony and evidence, and the closing.
(9) The defendant will have no more than 3 hours to present its case, including the opening, all testimony and evidence, and the closing.
(10) The jury may be given “plain language” jury instructions at the beginning of the trial as well as a “plain language” jury verdict form. The parties must agree to the jury instructions and verdict form.
(11) The parties may introduce a verified written report of any expert and an affidavit of the expert’s curriculum vitae instead of calling the expert to testify at trial.
(12) At trial the parties may use excerpts from depositions, including video depositions, regardless of where the deponent lives or whether the deponent is available to testify.
(13) Except as otherwise provided in this section, the Florida Evidence Code and the Florida Rules of Civil Procedure apply.
(14) The court may refuse to grant continuances of the trial absent extraordinary circumstances.
History.—s. 6, ch. 99-225.
The statute is made for jury and non-jury Florida state Court
cases. As the Courts get used to conducting non-jury matters by video conferencing, and to help solve the COVID induced backlog, some disputes, such as commercial matters and declaratory actions requiring factual determinations, can use this procedure.
Parties will insist their case move as fast as possible, so streamlining the process makes absolute sense when serving the needs and demands of our respective clients.
They can also enjoy the benefits of avoiding expensive expert witness travel and time costs. In fact, the expedited trial process allows lawyers to be advocates and problem solvers in ways in which they are not usually accustomed.
While the statute states the expedited trial “…shall be conducted as follows,” the wording provides wide latitude for counsel to add agreements into their Stipulations, all to be approved by the presiding Judge. That makes the statute very flexible, especially in times such as these.
In fact, some will argue the statute is procedural in nature and beyond the Legislature’s authority. They will argue the statute is violative of Article 5, Section 2 of the Florida Constitution which provides the Supreme Court establishes Court procedures. To get around this, the parties can stipulate to the framework set forth in the enactment, and with Court approval, the constitutionality concern should not apply.
With extreme backlogs, the different Judges in the Civil Division may encourage the use of this procedure.
But what about jurors?
It is time to think about jury duty in a new, technological way. Can we establish secure system where jurors attend short trials by Zoom? If Judges, lawyers, and Court Clerks work together, suggestions can be made to the Florida Supreme Court to allow for such remote appearances with strict requirements.
Yes, jurors would have to attend virtually, but they would be visible to the lawyers and Judges throughout the trial process. They can deliberate privately through electronic “Breakout Rooms” as well.
The video trial, with exhibits shown to the jury, can be completely controlled by the presiding judge. In-Court Clerks, Court Reporters and interpreters can participate in real time.
Already, internet-based Juror focus groups have led the way for experimenting with an expedited jury trial procedure. We can take their experiences one major step further.
Many readers of this post will say “No way.” I strongly disagree. Think harder. No problem is too difficult to tackle. We can devise a “remote juror” system that is ethical, smart and fair. Society created the jury system, and now it can seize the moment and reinvent certain portions of it to meet the realities of this new and fragile era.
In 2012, The American Board of Trial Advocates endorsed the expedited (non-virtual) jury trial process. So did the National Center for State Courts.
Embracing the Expedited Trial process to move cases along is a strategy that should be considered by you, your Clients and the Courts. With or without a jury, we can build on this process to keep the system working and battle case load logjams.
As I have said before, “Justice will not be overcome by this virus.” Let’s get to work. Please send your feedback and suggestions to ABOTAFTL@gmail.com.
— Mitch Chester 4.5.20.