Legal and Regulatory

Virtual Jury Trials of Construction Disputes: The Necessary Union of Both Sides of the Brain

In this case study, a contractor found that a virtual jury trial can be effectively conducted with none of the parties—attorneys, judge, witnesses or jury—in the same location.
By John Dannecker
March 28, 2021
Legal and Regulatory

Bart Smith is the Senior Project Manager for Simply Best, a general contracting firm. He has been assigned to serve as the liaison with outside counsel in a lawsuit against Holly’s Harleys, a project owner who contracted with Best for the construction of a motorcycle showroom. Best filed suit in federal court for additional project costs it incurred, which it contends were caused by the specification of incompatible materials by Holly’s design firm.

The coronavirus pandemic is still raging as the trial date approaches. Courthouse facilities are closed so civil trials are conducted using remote technology, if they occur at all. Bart negotiated the prime contract with Holly’s, and he regrettably allowed Best’s binding arbitration and jury trial waiver clauses in the prime contract to be deleted. Bart worries about how the intricacies of Best’s case can be adequately explained to a jury in a remote trial. His concern approaches panic when Best’s trial counsel explains how the trial will be conducted with none of the parties—their attorneys, the judge, the witnesses or the jury—present in the same location.

Best’s trial attorney explains to Bart that the trial presentation will require a true marriage of the right and left sides of the brain. The right side will help formulate creative ways to illustrate how the specified materials were incompatible and how that financially impacted Best. The left side will help fine tune such things as the audio quality and the location and lighting for the cameras that will capture the trial participants. The sheer volume and complexity of the information shared by Best’s trial counsel was simply too much for Bart to competently convey to his superiors, so he asked Best’s trial attorney to prepare a question-and-answer paper that covered many of the key aspects of a remote jury trial. Excerpts from that paper are found below.

Selection and Participation of Jurors

Q: Will the potential jurors travel to the courthouse to be questioned by the judge and attorneys for potential service in the case?

A: No. They will participate in the voir dire process through a secure remote video platform. The potential jurors, the judge and attorneys will see each other through cameras on their laptops or other video devices.

Q: What if potential jurors don’t have the technology required to participate remotely or don’t have the technical proficiency to operate the remote platform?

A: These potential jurors will be excused from service through a screening process designed to identify such impediments prior to the beginning of voir dire.

Q: Will the jurors who are chosen to serve be allowed to have other people listen to the evidence and can they record the trial?

A: The Court will likely order the jurors to be alone in a quiet room and will not allow the trial to be recorded.

Presentation of the Evidence

Q: Will Best’s trial representative be on camera the entire trial?

A: The Court will be asked to only require the lead trial attorneys, the judge, the witnesses (during testimony) and the jurors to be within camera view.

Q: How will the physical evidence be stored before and after it is formally offered into evidence?

A: The Court will likely require the use of an electronic document repository platform to store all potential exhibits at the beginning of the trial. A separate folder within that platform will be created to host only the admitted exhibits for use by the jury during deliberations.

Q: Best needs the jury to fully understand the incompatibility of the construction materials mandated by the specifications. Is it possible for Best to deliver representative samples of the materials to the jury so they can touch and feel them?

A: Probably not. Alternatives to this may be to perform a demonstration during testimony or an animation showing how the materials were to be installed and the problems caused by their incompatibility.

Q: Best plans to present the testimony of potentially uncooperative non-party witnesses it will have to subpoena for trial. How can Best know the location from which the witnesses will testify and how can Best ensure they’ll have the technology to convey sound and video during their testimony?

A: This is possibly the most difficult aspect of the trial to control. Best needs to provide in the trial subpoenas as much detail as it can about the witnesses’ remote testimony, including trial counsel’s contact information so the witnesses can contact counsel to help them prepare.

Jury Deliberations

Q: How will the jury be able to view the admitted exhibits?

A: The Court will provide access to the evidence in the electronic document repository. The attorneys will work with the Court to prepare a neutral exhibit description index so the jurors can access the exhibits of interest.

Q: How will the jury deliberate when they are not together?

A: The remote participation platform chosen by the Court for the trial will have a private group feature which allows the jurors to deliberate without being seen or heard by others.

Equipped with the foregoing details, Bart knew that a remote jury trial wouldn’t be easy, but with the left and right sides of the brain at work, a winning case could be presented.

by John Dannecker
John Danecker is in the Orlando office of Shutts & Bowen LLP, where he is a member of the firm's Construction Law Practice Group. John, a Florida Bar Board Certified Construction Law attorney, has more than 30 years of experience in the practice of complex, large dollar construction projects and related disputes. John’s extensive trial experience, drafting and negotiating skills enable him to help clients avoid disputes and facilitate early resolution once disputes arise.

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