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Remote Jury Trials: Try at Your Own Risk

Whitney Brieck

by Whitney Brieck

January 25, 2022

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The Eleventh Court of Appeals in Eastland, Texas recently reversed a final judgment after the logistics in a hybrid-remote civil jury trial went sideways in August 2020, and remanded for a new trial. The moral of the hybrid-remote jury story: Try at your own risk!

Even as we explore creative solutions to pandemic-related problems within the Texas judicial system, fully consider all risks—including the possibility of a mistrial or new trial—when pushing for novel trial methods to resolve health and safety concerns.

The Context

The underlying lawsuit in Kinder Morgan Production Company, LLC v. Scurry County Appraisal District concerned the value of a working interest in a formation being fracked in Scurry County near Midland. The dispute was apparently one of many between these parties and proceeded quickly toward trial. Lead counsel for KMPC sought a continuance when his doctor ordered him not to appear for an in-person jury trial, due to age and underlying health conditions. He argued his client had a due process right to be represented in-person by counsel of its choice when the circumstances would permit. The trial court insisted that the trial proceed with lead counsel attending remotely.

KMPC sought mandamus relief all the way up to the Texas Supreme Court, which ordered that no jury trial could proceed before August 1 without the consent of all parties. KMPC would not consent. The trial court scheduled a trial for August 20 instead.

The Trial

The trial court held voir dire and the jury trial in the local high school auditorium. Lead counsel attended remotely and was depicted on a large screen via Zoom, while his co-counsel attended in person. Although KMPC hired logistical experts, KMPC was forced to repeatedly re-urge the motion for continuance based on the following difficulties noted on the record:

  • 3 feedback issues during voir dire and 2 during testimony
  • 28 instances of difficulty hearing between participants during voir dire and 19 during testimony
  • 4 times lead counsel could not see the venire
  • 3 times lead counsel could not see exhibits, the witness, or the judge
  • 16 times lead counsel had to ask co-counsel to assume questioning or handle objections
  • 4 times lead counsel could not hear opposing counsel or the trial court
  • A 30-40 minute period in which lead counsel completely lost internet and the trial appeared to proceed without him

The trial court refused every request for a continuance, stating that the trial was being held in “a fabulous facility that allows us to do what is envisioned by the Supreme Court” and that “we are not shutting down the judicial system in Texas because of technology issues we have dealt with, addressed, and largely overcome.”

The trial court explained that the trial was “an experiment being watched” by the Office of Court Administration to “assist them in their recommendations to the Supreme Court, both positive and negatives, about how a proceeding might be conducted to furnish social distancing and safety and health for all the participants.”

The Reversal

The Court of Appeals reversed the judgment rendered on the jury’s verdict and ordered a new trial, stating:

“Irrespective of what the trial court intended to achieve, it failed to recognize that by not adjourning the trial, at least until the technical difficulties could be resolved entirely, it was effectively forcing KMPC to be a participant in a failed experiment and was ‘shutting down’ the justice system as far as KMPC was concerned. Here, the compounded problems that occurred throughout the trial resulted in a situation that became unmanageable, and the trial court’s insistence and desire to proceed with and complete this ‘experiment’ for the purpose of providing statistical ‘jury trial’ data to the OCA significantly overshadowed KMPC’s fundamental right to due process and representation by counsel of its choice.”

In Conclusion

The court of appeals included a strong caveat that not every jury trial needs to be continued due to COVID. The court of appeals analysis provides a helpful diagnostic tool for assessing where your case falls on the scale between try-at-all-costs or hurry-up-and-wait. Choose carefully.

Contact Whitney Brieck if we can help.

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