Getting your day in court is getting to be a lengthy battle with time. It’s no secret the court systems are backlogged with cases. Delays in getting cases to trial drive up the cost of litigation. It sometimes takes years to get a court date in the more heavily used venues in America. In addition to budget cuts almost everywhere, an increase in criminal cases, which have priority over civil cases, is exacerbating the problem for the civil sector.
These delays have a profound effect on civil litigation and business in general. They can make it too expensive for a relatively poor plaintiff to get the justice he or she may deserve against a wealthy defendant or cause such a defendant to settle when he or she shouldn’t or for amounts greater than the case is worth. They can also delay important make-or-break business decisions. “We need the resources to do both civil and criminal law,” says W. Royal Furgeson, a senior federal judge in Dallas. “If decisions on contracts, mergers and intellectual property rights can’t be reached through quick and prompt justice, things unravel for business.”
If we think of the jury pool problem as one of supply and demand, with the demands of trials exceeding the available jurors, then trial by video works the problem from the other end, the demand end. Video is already used to an increasing extent in trials. Witnesses are sometimes deposed on videotape. Prior to the advent of inexpensive videotaping systems, a court stenographer recorded depositions only in written form. Now, many lawyers choose to videotape witnesses for various strategic reasons, including having the option of playing portions of the videotaped testimony at trial. This allows jurors to judge the demeanor of the videotaped witness, just as they do with a live witness.
To alleviate the concerns of some that videotaped testimony would not be as compelling as live testimony, or that jurors might not be able to evaluate the credibility of witnesses seen on a monitor, I offer the observation that the video monitor has a focusing effect on jurors. Where in a courtroom, the jurors’ field of vision includes a wide field of stimuli, that field is narrowed to the monitor when they are asked to view video deposition testimony and other media on a monitor. I a mock trial I conducted many years ago, this fact was underscored by “jurors” who noticed that a witness whose video deposition testimony was being presented was not wearing his wedding ring. They noticed this due to the tan line left by the ring and they made assumptions of the witness based on that fact.
Many cases could be tried entirely in this fashion, though I recommend it only for civil cases. All witnesses would be videotaped. By court order, irrelevant material would be edited out, reducing the total length of the trial, but the editing process would add an ancillary benefit. It would also cut out material, such as questions, answers, documents, and so forth, to which the court sustained an objection. This would, for example, prevent the jury from hearing improper questions from lawyers.
By contrast, the live trial system requires the judge to admonish the jury to disregard such questions. Trial lawyers know it is nearly impossible for jurors to do so. It’s known as “un-ringing the bell,” which can’t be done. That’s why trial lawyers push the limits and aren’t always afraid of having a question objected to or even being admonished by a judge. They want the jury to hear something, knowing it will probably stick in their memories even if a judge tells them to ignore it.
Trial by video would eliminate this element of trial gamesmanship and improve the quality of the evidence upon which the jury decides the case. Irrelevant information would never be seen or heard. Jurors wouldn’t have to be told to forget anything. The wheat would be removed from the chaff, so to speak.
Video trials need not be conducted in a courtroom. There’s no need to waste that resource. They could be conducted in any number of empty classrooms in our cities. These classrooms would be empty because the trials would be conducted in the evening. This would also free up many additional jurors for duty, effectively expanding the jury pool. Jurors would be able to continue with their jobs and fulfill various family obligations during the day. To make it easier for single-parent families, a classroom down the hall could serve as a childcare room.
This expansion of the jury pool would pick up jurors who may not have a financial hardship but whose presence at work is vital to the health of that company. This would eliminate the excuses any court observer has heard from many corporate executives, and the virtually automatic exclusion of the self-employed. The school systems would receive valuable revenue from the litigants for the use of the space, and the court dockets could be cleared of backlogs.
Here’s how the mechanics of the system might work. The witnesses would be videotaped under direct and cross-examination. A stenographic transcript would also be required, as it is now for all depositions. The court would rule on attorneys’ objections, and the resulting witness tapes would be edited to be free of all objectionable material.
The same procedure would be used for opening statements and closing arguments. This would put the burden on the lawyers, as it should be, to be careful about what they say. To ignore that factor would result in a chopped-up opening statement or closing argument. Not a good result for an attorney.
The entire trial would be edited before the jury is even selected. This provides an additional benefit. By being able to review the production prior to the trial, attorneys for both sides will see what the jurors will view in advance. They will be able to assess the strengths and weaknesses of their case. They might even use the tapes to “try” the case before a mock jury to determine the likely outcome, leading to the greater likelihood of settlement before trial, further reducing the impact on the judicial system.
For practical purposes, jury selection would still be conducted using courtroom facilities. It would be impractical for a sitting judge to transport himself or herself around the county to video trial sites, and the jury pool from which the sitting jury is selected is usually around fifty to sixty people, too large for a classroom.
The manpower needed to conduct the trial would be minimal. It might include a court clerk who takes roll and plays the videotapes. A paralegal from each side could also be present to place graphic enlargements or other exhibits being referred to in opening statements and witness examinations in front of the jury. A second video monitor could also be employed to display documents that accompany witness testimony, with highlighting employed to focus attention on the portions relevant at the moment, just as is the case with live testimony in courtrooms. For security purposes and to maintain order, a bailiff should also be present.
If a written record of the video trial were deemed necessary, a court reporter would be present. That reporter, however, should only be required to record what tapes were played, what exhibits were shown and so forth – easy stuff. A verbatim transcript of speech, requiring the highly skilled reporters used in live trials, would not be necessary. Lower skill level means lower cost.
The Sixth Amendment to the Constitution assures a defendant “the right … to be confronted with the witnesses against him.” No problem. In a trial by video, the defendant would have the right to be present during all video depositions of witnesses, as is commonly the case now.
Trial by video would make jury service practical for many jurors who are now “hardshipped” out of the system, including reasons other than financial. It also produces a clean trial, absent information the jury should never hear but which is difficult to forget.
“Trial by video” is a subchapter in Fixing the Engine of Justice: Diagnosis and Repair of Our Jury System, which can be previewed on this site.