Perfecting the Remot ...

Perfecting the Remote Jury Trial | Judge Karin Crump

May 6, 2021 | by D. Todd Smith

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As courts tentatively start to reopen in person, the extent to which remote proceedings will remain is uncertain. But when COVID-19 shuttered courthouses everywhere, Travis County, Texas took the lead in providing courthouse access virtually. This episode features Judge Karin Crump, of Travis County’s 250th District Court, and covers her leadership and experience paving the way for remote proceedings and some of the first virtual jury trials in the nation. Judge Crump discusses how the Travis County team worked to ensure fairness and representative juries, and how they have mastered technological challenges to make virtual jury trials a success. She also discusses some of the benefits virtual proceedings allow and best practices for presenting witnesses and evidence in a virtual courtroom.

We have with us our guest, Judge Karin Crump, from Austin, the 250th District Court Judge. Welcome, Judge Crump, to the podcast.

Thank you for having me. It’s a pleasure to be here with you two.

We’ve had a few district judges on the show and they’ve all been good guests. We’ve been thrilled to be able to present some of the trial bench to our audience. You’re certainly no exception to that. We certainly look forward to our visit with you today. We’re going to talk primarily about your experience as one of the more experienced judges trying virtual jury trials. Before we get to that, let’s talk about you, your background, maybe your early career. Tell the listeners a little bit about yourself.

I was a military brat. I grew up with my father in the Air Force. As a consequence, I grew up all over the world. I was born in California but I lived in Japan, England, and Germany before my dad landed in San Antonio, which is where I went to middle school and high school and eventually law school. I went to UT for my undergrad. After St. Mary’s Law School in San Antonio, I practiced law for six years in Dallas. I opened my own shop in about 2000 and enjoyed that very much. I had a little law office in an art gallery in Dallas. It’s pretty neat that my clients would get to come into an art gallery. It was a beautiful space. I did that until I decided to return to Austin, where my husband and I felt like it would be the best place to raise our family.

We came back to Austin in 2003. I was with Martin, Disiere, Jefferson & Wisdom. I practiced with them in the space of first-party insurance-type work. I had been at two litigation boutiques in Dallas acting as national counsel on some large wrongful death cases on the defense side. When I opened up my own practice, I did a lot of plaintiffs’ work, I did a lot of family work. I had a more general practice when I had my own shop. I was returning to the defense work when I came back to Austin. At a point in my career, I wanted to use the experience I had on both sides of the bar and focus on mediation. I had received my certification as a mediator in law school but I hadn’t done as many as I’d wanted to do throughout the years of my practice before that. I joined Lakeside Mediation Practice and did a little bit of of counsel work as an attorney until I ramped up my business in mediation such that I could do it full-time.

In about 2008, my state representative reached out to me and asked if I would run for a bench that needed a Democratic candidate. They asked me to run for that seat. I ran. Ultimately, it was unsuccessful. It was the year where there was a large Tea Party turnout and that portion of Travis County is pretty heavy Republican voting. It was a time in my career where I had to figure out what I wanted to do. I focused again on mediation. I was happy to do that. I didn’t know if I would return to the idea of going to the bench until Judge Dietz let me know that he was going to be retiring and reached out to me and asked if I would be interested in his bench. It was great timing and I was able to start preparing for an even greater time investment in a district court race run.

Ultimately, I was successful in 2014. I started the bench in 2015. It’s been a fantastic experience. I won my reelection in 2018. We have the most diverse docket in the state other than those judges who do real general jurisdiction. We have the administrative appeals from all over the state, all state agencies. We have original jurisdiction in many cases. We have all the civil and family law cases that most of the lawyers who come in our courts see but we do have this other interesting appellate portion of our practice in Travis County.

In your first foray into judicial politics, you acquired some battle scars.

I definitely acquired battle scars. I used to be the facilitator for a leadership class here in Austin. I did it in Dallas before I came here. In Austin, David Courreges and I started the leadership class here. I know you’re familiar with that, Todd. One of the things I like to make sure that the lawyers who participate in the leadership class know and understand is that battle scars make you better, they make you stronger. They make you appreciate when you are successful. You learn more from failures, I’ve always believed that. It makes everything a little bit sweeter when you are successful and more appreciative of those going through challenges. You don’t experience life unless you have gone through some hardship.

Going through an eighteen-month campaign and then losing is pretty tough. I tell people all the time that I would do it again because of the people who I met along the way. I got to meet Republicans, Democrats, people from all walks of life, people who are passionate about the things that they campaigned on. I got to work alongside candidates and meet groups, constituencies that I wouldn’t otherwise have met. It’s a great way to get to know your community.

No doubt about it. You’ve certainly weathered that storm. You rose up. You won the election in 2014. You’ve been on the bench that long. You’ve risen to a position of great leadership in and among the judiciary. Jody and I brag on our Texas judges all the time about how we’ve been fortunate because our judiciary has embraced, in the time of this pandemic, the technology that it’s taken to keep cases moving. I’m proud to say that Travis County has served as a model for judicial systems far beyond our state borders. You’ve been giving a lot of talks on that as I recall.

We faced the challenge of how we were going to ensure that there was an administration of justice during this pandemic. It was an extraordinary challenge. David Slayton from the Office of Court Administration was essential to ensuring that the judges across the state had what they needed to have remote proceedings. He quickly snapped up the Zoom licenses for all of the state court judges in Texas. When we first started in Travis County, they didn’t have enough licenses for us to share. I would be paired with a couple of other judges and we would have to use the same Zoom license. We couldn’t have hearings at the same time. It was going to be difficult. David had the foresight to snap up all of those licenses. You might remember, there weren’t even enough Zoom licenses for everyone who needed one. Not only the legal profession but, of course, every business was trying to snap up these licenses and get up and running by Zoom.

Within a couple of weeks of the state’s shutdown and when we knew that we weren’t able to get into the courthouse and have hearings safely, we were able to start having virtual hearings. We were in a 90-year-old building. We knew that it was unlikely for it to be safe for us to be socially distant. We weren’t going to be able to social distance and conduct hearings in a way that could keep people safe. We certainly weren’t going to be able to summon jurors in our small spaces and keep everybody safe. We started thinking about how to do that.

Remote Jury Trial: The beauty of the process of waiting was that we were able to put together some really thorough procedures that addressed all of the concerns.

At the time, our local administrative judge was Tim Sulak. Judge Livingston was our local administrative judge before the pandemic. The two of them were working closely to get a plan in place. They tasked me as the chair of the jury committee for the county to try to come up with a plan on how to do this. Frankly, there was little out there. I knew that we were going to have to start from scratch and create some procedures and plans that would safely allow us to conduct juries and to summon juries.

There was a lot of resistance in the legal community, understandably. There was a lot of concern that it couldn’t be done fairly, in an efficient way, and in a way that would ensure that everybody got a fair shake. I started meeting with local lawyer groups in different committees. I met with some plaintiff’s groups and defense groups and I met with anybody who wanted to talk about it. I listened to what their concerns were. I circled back with our court IT team in Travis County, which is phenomenal, and my staff attorney. I have a fantastic staff attorney and a team at the 250th. We regularly and continuously tested each system that we were putting in place.

I kept pushing out information to the Austin bar and asking them to talk to me about it and send me their concerns. Every time they had a concern or worry, which were always legitimate, truly, every time that they would come up with something, we’d have to tweak a little bit, adjust, and ensure that we were thinking about everything. The beauty of that process of waiting was that we were able to put together some thorough procedures that addressed all of those concerns. As we went along, what I found was the hesitation and the concerns decreased. The cynicism, quite frankly, went away. People saw that we were trying to ensure that they could get to trial if they want to go to trial.

The Texas Supreme Court’s emergency orders changed in an important way on October 1, 2020. What happened on October 1 was that we could proceed even if there was an objection to the remote proceedings. That change meant that we were going to have to deny some objections to the remote proceedings. We had before then said, “If both sides want a trial, we’ll go. If anybody has an objection, we’ll wait until we’re all back in person.” That wasn’t happening quickly. If you were looking at the data in the summer of 2020, you knew that we weren’t going to all be back in the courtroom in the fall of 2020. It was becoming more obvious to anyone who is taking a close look that this is going to go on a lot longer than we all hoped and planned.

Our plan became that we were going to be a virtual platform until where you can start seeing a good percentage of our community here getting vaccinated and watching the daily numbers of hospital admissions going down finally that we can start planning for a return to the courthouse. In the meantime, we had child welfare cases that needed to be tried. These are termination of parental rights cases in which the party is constitutionally entitled to have a jury trial within a year of the inception of the case unless there were some specific reasons why they shouldn’t. The Texas Supreme Court did allow us some leeway in extending those cases and those statutory deadlines. At the end of the day, we’re talking about children who are not in a permanent home. We wanted to ensure that those children have finality, whatever it may be, and that the parents have access to a jury to make those decisions.

The first remote jury trial that we did was in December of 2020. It was a five-day-long trial. To my knowledge, that was the longest remote jury trial in the world, at that point, at least. I’m not aware of any other jury trial since then that’s been longer than that. I’ve had four jury trials that lasted five days. All of mine have lasted that long. At the time, I had a lot of people watching from the Netherlands and other countries because they were saying, “They’re doing it. In America, they’re getting jury trials done and it’s working.” I tried to ask my court IT team to make sure that the chats were disabled on YouTube. Inadvertently, it hadn’t been turned off. You can see these sweet messages from some judges in the Netherlands and they’re like, “This is fantastic. We’re excited that you’re doing this.” They’re coming in at 2:00 AM when they were watching. It was nice to see that positive feedback from other places in the world that were watching what we’re doing.

I’m proud of the judiciary for tackling this challenge and for being brave enough to do it. It was a true collaborative effort. Our district clerk, Velva Price, had to have buy-in in this process. She had to train her clerks also to do it in the way that we do our virtual check-in and virtual summons. It takes a lot of planning with a virtual jury trial because you have to start reaching out to jurors, letting them know that this is going to be this unique process, training them how to do that. Ultimately, having them log on and feel competent with the process of logging on remotely. Having our court IT team ready to train all of these jurors as they’re logging in. Having all of these teams, the court IT team, the district clerk team. Constable 5, Carlos Lopez, our local downtown constable being willing to take out iPads to jurors or to do the pickup of iPads for the jurors. They did that above and beyond their normal duties to make this work for us.

To that point, one of the early objections to the idea of a virtual jury trial was not everyone is going to have the technology. You’re at the mercy of whatever technology that the public has available. It was through a grant that those iPads were secured. Travis County was able to provide these Wi-Fi-enabled iPads with, as I recall, only Zoom and Box loaded on them. That was the solution to that immediate criticism, if I recall.

David Slayton had purchased several iPads for the state. I don’t know how many they purchased, but I knew that our plan was going to be to start having jury trials every other week as soon as possible. With our child welfare cases, we have a panel of 55. I was hoping that we could have three jury trials a week, which meant we needed 150 iPads in Travis County alone. David Slayton was sending out iPads to counties all over, including to Judge Ferguson, out in West Texas, Dallas, and Houston. My worry was that there wouldn’t be enough for the number of jury trials that we wanted to conduct.

Early on, I asked one of our court administrators to go to the county commissioners in Travis County and to request that they use grant funding, funds to purchase iPads specifically for us. They did that and that request was successful. We did wind up with 150 iPads. Those iPads, we decided, needed to be locked down. The concerns and worries of attorneys that I had heard were exactly what you said. What if their connection is not good? We’ll give them hot spots so that if they lose their connection, they can switch to the hotspot. These jurors are going to be searching the internet and they’re going to be on their email, Facebook, or what have you. That was great. That was an important consideration.

Our IT team was able to lock down these iPads. In Travis County, we only have apps for Box, which is where the exhibits are housed, Zoom, and that’s it, those two functions. They can’t search the internet from their iPads. They can’t check emails. They can’t do anything except focus on our trial. Listening to the lawyers and trying to address the concerns, so they only use iPads. The constable’s office delivering those iPads to the jurors was how it worked. We also had two mock voir dires. Even though the plan seemed like it would work, we needed to test it. We had a bunch of volunteers show up. We had more than 40 attorneys, paralegals, staff from the courthouse participate in two different voir dires. We tested it and it worked quite well. We felt a little bit more confident as we went into that first jury trial.

Had you done bench trials before you did the first jury trial? Was this the first trial that you’d done remotely?Battle scars make you better and stronger. They make you appreciate your success more.CLICK TO TWEET

We’ve been doing bench trials since April 2020. We’ve done a number of them, all of the district judges in Travis County. The civil judges had been doing the docket. Travis County didn’t change other than the first two weeks after the shutdown. Once we were all up and running on Zoom, our court administrator kept on scheduling the docket exactly like he had in the past other than we didn’t have the big docket calls on the jury trial. The jury docket went away. We used those jury weeks to tackle a much larger submission docket.

We had a submission docket that had been in place since January of 2020 by happenstance. We had created some systems. Judge Soifer was instrumental in creating some systems that allowed us to have a true submission docket for uncontested matters and default matters. That docket helped us handle a much higher percentage of matters through submission. In Travis County, we did little by submission. Often, our administrative appeals were handled that way but even those had a hearing. I would say 30%, 40% of what we’re doing is by submission, which is a large percentage of our work.

A couple of quick clarifications. By the time you are able to start calling jury trials, you all had become super efficient with Zoom as far as run-of-the-mill routine hearings, parties showing up, learning how to present evidence through Zoom, using Box. You mentioned YouTube. I want to clarify for the readers that this is not uncommon at all. What you all have done is use Zoom and then it will broadcast to YouTube live at the same time. You know no one’s going to Zoom bomb you because only the parties get the actual login information for the Zoom. Anyone, worldwide, as you pointed out, can watch a live court proceeding. There’s a directory online to the Texas court site.

When we go back to normal, whatever that is, I’m going to miss this because I love being able to say, “What’s Judge Crump up to today?” I can tune in in my workout clothes or whatever I happen to be wearing and pop my head in the courtroom. That has been such a great thing to see, getting to see lawyers from different parts of the state. Even in the days before the pandemic, you could get some of this by going and hanging out at the courthouse. It makes me think back to the small courthouses where you see the lawyers hanging out. Not so much in Travis County or the bigger counties but this was the virtual hang around the courthouse. I got used to it. I’m going to miss it when it’s gone.

It’s been good for law students, young lawyers, lawyers who are a little rusty because they’ve grown so senior that they don’t go down to the courthouse as frequently as they used to. They’re only going for the big trials. It’s nice for me even to see what my colleagues are doing. It’s a little harder for me to walk into the courtroom and observe and see what’s happening in a hearing without being conspicuous. It is nice for me too. It’s nice for all of us to be able to see different types of cases that are going on at the same time. I don’t know what’s going to happen long-term if we’ll keep some of that or not. We might. It’s nice. It’s a good way to have open courts. Especially in Travis County, it’s difficult to park, it’s difficult to drive downtown. Everything is hard. It takes a lot of time in getting to the courthouse. It will be nice if it sticks around. We’re going to have a planning meeting. We’ll be planning the return to the courthouse. We’ll see what that looks like in terms of YouTube and public broadcasts of our proceedings.

Most people agree that it would be nice if some things were carried over into the new normal. We’ve talked about that with Judge Ferguson and a few others. It’s a pretty uncontroversial position, whatever it may be. I had on my list to talk to you a little about what’s the future going to look like but it sounds like we’re still trying to figure that out.

We have to listen to the public health authorities. It seems to be, from the state of the judiciary, that the Supreme Court would like us to do as much as we can virtually for as long as we can because it has proven to be quite efficient and successful. For these uncontested or simple matters, it makes a lot of sense for a lot of people. There were concerns about access to justice when we first started because of the technology. As long as we’re addressing the access to technology, in many ways it helps access to justice because people don’t have to pay a lawyer to sit in a courthouse and wait through a docket call. Even accessing experts is quicker, easier, and less expensive because we can get doctors, teachers, and collaterals quickly on Zoom where it would have required people to take a full day or half a day off of work. We’ve been a little bit surprised at how efficient and helpful it is in many ways to have remote proceedings.

Let’s say it’s also better for those who want to have appellate lawyers in their hearings. We have to throw that in, the obligatory promotion of our practice area.

You’ve handled four week-long remote jury trials. Do you know of any judge in the country who’s handled more than you have?

I don’t know if any have handled more than one. It wasn’t my plan to be the remote jury trial judge. We had trained our team well and everybody had become practiced that it was easier in many ways to stick with that same group to keep doing it. We’re cross-training in Travis County. Every one of the senior judges in Travis County has been what we call the administrative judge in one of the jury trials that I’ve done. They’re all ready to start taking remote jury trials.

We didn’t even talk about it but one of the true benefits of a remote jury trial setting is that, for the first time in a year for many litigants, they know that they have a true trial setting. Often, that’s what gets people to settle. We’ve had two judges already scheduled to take remote jury trials but the cases that were set before them settled. I assume that has happened all across the state for the judges who have started setting jury trial schedules, is that cases are getting resolved. They may not be going forward because of that. I have a love and passion for jury trials. I enjoy them. It’s worked out that way. I’ve enjoyed the process.

Tell us about the administrative judge aspect. What I’ve seen is that there’s been the judge who was going to sit as the trial judge, which has been you and the cases that you’ve handled. It was maybe Judge Soifer that was the voir dire administrative judge. How are you all tag teaming voir dire? Is it limited to voir dire or does the administrative judge have another role?

That was an idea that we came up with to cross-train the other courts. The other benefit to that system is that we always have a judge in the virtual courtroom. Among the other concerns of the lawyers as we were planning for these remote jury trials is jurors are going to wander off. They’re going to leave. They’re going to be at their homes. Who’s going to be paying attention when you’re talking to the lawyers in bench conferences? It was a great concern and it made me start thinking about, “What can we do to ensure that there are always eyes on our jurors and that they’re participating and they’re not leaving?”

A couple of things happened. One, we decided to ensure that all of our jurors were in numeric order. It’s a little easier to keep track of them. The second was to have the administrative judge always in the virtual main session of the courtroom. The bench conference room is a breakout room. For the example that you used, Judge Soifer remained in the main session as the attorneys and I are discussing strikes for cause. After I’ve provided the admonishments and the attorneys have done their voir dire examination. At that point, I take the lawyers into the breakout room and they tell me, “I have concerns about juror number 12, 14, 3, and 6.” We talk through those. I determine whether there are already agreements. If there’s not an agreement about juror number three, we invite that juror into the bench conference breakout room. The lawyers have an opportunity to ask questions of that juror to determine whether or not there is a reason to strike that juror for cause.

Remote Jury Trial: We have had an almost 100% show-up rate during remote trials.

In the main session, Judge Soifer is there and she’s visiting with the jurors who are remaining in the courtroom. It keeps them there. It keeps them engaged. They can talk to her about, “Judge, I have a doctor’s appointment on Thursday at 9:00, is that going to be a problem?” They’ll be talking to her about things that might be more related to economic strikes or medical excuses for not serving while the attorneys and I are dealing with those excuses that require an agreement of the attorneys and a record for the appellate lawyers. The court reporter always stays with me as the presiding judge. That is the record.

That’s an interesting approach. I hadn’t thought through that. In terms of the venire panel, did you find that you got good response rates? I could see concerns in some instances where a jury would be maybe less diverse a representative if called virtually. I can also see where it would be perhaps more diverse.

I can tell you that I’ve done four. These are the most diverse juries that I have had in my years as a trial judge. I don’t even know why but for some reason, our juries in Travis County who appear for trial tend to skew older, whiter, and male. That’s unfortunate because it doesn’t reflect our community as well as it should. In our remote jury trials, we have had an almost 100% show-up rate. That means our juries look like the community. I’ve had the most diverse juries in all four of these trials. One of them, we reduced down to six. It wasn’t as diverse as the other three. For the two child welfare cases, we want to have a jury that looks like the community. It’s important, diverse juries. Even in the commercial litigation case that I just tried, it’s a diverse jury. That’s a beautiful thing. What we want to see is that all parts of our community are represented and reflected in our juries. That’s been a surprise, honestly.

If you think of technology, maybe we’re not going to be able to reach all members of the community. The fix of having county-issued iPads means there is no technological divide here. Anybody has the technology they need. If they don’t have a quiet space at their home because they live with several other people or have a lot of children at home, they can go to the courthouse and they can serve in one of our Zoom rooms, which are quiet spaces with the technology there. I’ve only had one juror take us up on that but everybody else has been able to find a quiet space and use their iPad in their quiet space.

Do you offer that service to lawyers? Sometimes I feel like I could use a quiet room.

We can all use a Zoom room at the courthouse. We do. I have had a couple of lawyers take us up on it. They have to reserve them through court administration and they get their little desk and everything at the courthouse, no problem at all.

I learned something new because I did not know that.

When the saxophone lessons are going on, you may want to reserve yourself a Zoom room.

I have kids who are doing remote school and a UT student. My husband works on Zoom all day long. Sometimes I wish that I had my own Zoom room at the courthouse. It works. It’s crazy. I do understand and appreciate what a lot of people are going through with kids at home and the strange situation that we’re all in. We’re all going through it together. We’re all human here. We’re all going through the same strange dream. It’s been odd. The jurors have been appreciative of the ability to serve remotely.

People hate going to downtown Austin. Our jurors hate it. They hate having to wander around for blocks and blocks trying to find parking. We’re going to get that problem fixed in a couple of years when we have a new courthouse. 1000 Guadalupe is probably the worst place in Central Texas to try to find parking. We have 2 or 3 juries and that means 150 people are trying to find a parking space all at the same time plus whatever’s happening at the criminal courts building. It’s rough. They get frustrated with us. We’re like, “We wish we could find you parking,” but there’s only so much real estate down there and it’s getting more so every day in downtown Austin.

I know that this changed the way that you all do evidence. Did you have to modify both of your pre-trial procedures and then the way that everybody exhibits and all that in advance?

Yes. That was one of the bigger challenges for us. How do you change the system of handing a witness a physical document and turn that into an efficient and correct procedure? We created a system in which we use, which our county required Box instead of some other platforms for housing exhibits. We use a folder that includes plaintiffs’ exhibits, defense exhibits, documents viewed outside the presence of the jury that’s a folder, and admitted exhibits. The plaintiffs’ side is required to upload all of their documents individually marked and uploaded into the plaintiffs’ folder. The defense does the same with theirs. As they are pre-admitted before trial, they shift into the admitted exhibit folder. If they haven’t been pre-admitted, the process would be for a witness. They receive a link and the link has a password.

Before the attorneys present the witness, they have forwarded that link to the witness. The witness opens the link. At the link, they can see the exhibits in the witness viewing folder. At the time of trial, the attorney lays the predicate for the admission of the exhibit. The witness can see it. The witness can identify it. They walk through the predicate. If there’s an objection, I take a rule on the objection. If I overrule the objection and admit the exhibit, it goes into the admitted folder. That’s the process that we use. For impeachment, an exhibit would be in that same witness viewing folder but not uploaded until the attorneys are ready to show the witness.

On cross-examination, they can upload that document right into that witness viewing folder. The attorney can say, “You received the link before trial, correct?” They said, “Yes, I received that.” “Go to the link and you’ll see a new document. Do you see that?” They say, “Yes, I do.” Do you remember getting your deposition taken? “Yes, I do.” Do you remember, at the time of the deposition, you said that the light was green? The witness says, “Yes.” “You told us that the light was red, correct? Have you been refreshed?” “Yes. Now I know.” You can still do the surprise impeachment with this process. It’s been fun to see the lawyers getting comfortable with that process. It’s great. That was truly the biggest challenge.

I have to give props to our court IT team. I came to them and I was like, “How are we going to do impeachment? How are lawyers going to do impeachment? They need to be able to impeach witnesses.” I talked through the problem with them. They’re like, “How about if we do this?” We practiced it and it worked. The lawyers are like, “That’s it. As long as we can, we have a way to impeach the witness. We can still have an element of surprise to it. It works.” Everybody has been happy with that fix. It’s been working great.

Once the exhibits are in the admitted folder, the court reporter does the actual move into the admitted folder. She controls the permissions for that admitted folder. Once the jury has been released for deliberations, I ask the attorneys to check that folder and make sure that the exhibits are complete, accurate, nothing’s in there that should not be in there. On the record, they’re telling me that they’ve done that process. Once they’ve done that, we open up the permission for the jurors to be able to access the exhibits on their iPad. At that time, until they have concluded deliberations, they have access to the admitted exhibit folder.

How do you handle the old “can I publish this to the jury” thing? Do you share-screen?

Yes, they can share-screen. The attorneys have the power to share the screen during the trial before the exhibits are admitted. They’re not permitted to share until they’ve been admitted. We walk through that process with the attorneys. You wouldn’t be permitted to share an exhibit with the jury until it’s been admitted unless it’s a demonstrative exhibit. They know that. They understand that could cause an error. They’re not supposed to share anything except for admitted exhibits. The jury can pull them up as they’re deliberating.

How do you handle deliberations? You’re putting the jury into a breakout room?

We have a jury breakout room that is the same breakout room throughout the trial after they’ve been seated. They come in every morning at 8:45 and they go straight to their jury breakout room so that they can talk amongst themselves about anything not related to the trial and get to know each other like they would when they were coming into the physical courtroom and visiting in the mornings. They go there during our morning break, lunch break, afternoon break. They also go into that room when they’ve been excused for jury deliberations.

There are two people who go into the jury deliberation room with them. My judicial executive assistant is permitted to go into their room when they’re not deliberating. Once the jury has been excused for deliberations, she and our court IT person go in there for the sole purpose of explaining how to access the exhibits and how to look at the charge while they’re deliberating and be able to read the charge. Once the court IT team member has explained that process to them, he departs and they begin their deliberations. The Box folder has the charge. The Box folder has the admitted exhibits.

They push the button that says, “I need help,” if they have a question. They have access to the form that they can complete with a question to the court. If I get a question, I take the attorneys back into the bench conference room and tell them what the question is, talk about an answer. That answer goes back to the jury. When they’re ready, they have a verdict, they can push the button again, that says, “I need help.” Our court team member goes in there and ensures that they are either unanimous or that 10 out of 12 or 5 out of 6 of them are in agreement. They’re educated on how to sign the verdict through DocuSign. DocuSign is the court’s charge to the jury but it has dropdowns that allow them to either fill in the answer or answer yes or no. They each can sign their signatures on the verdict.

You guys have put so much thought into this. It’s amazing.

It’s been a long process but it has been an exciting process. It’s been like a puzzle trying to figure out to put all the pieces together. We know that you all are out there and that you’re looking carefully at what we do. We have objections to virtual proceedings in almost every one of these trials. I’m well aware that I need to do this right, correct, and properly so that we don’t lose all of the work that’s been put into these jury trials. We want it to be correct. We want to do it in a way that ensures that people have a correct and fair trial.

Other than the great response from jurors, I’ve been pleased that even lawyers who’ve been reluctant to have remote trials, in the end, are coming out and saying, “I had a lot of doubts but this was smooth. This was great. This is a positive experience.” That’s been rewarding to see that, collectively, we’ve been able to create a system that works for many people. It’s been a source of a lot of pride for all of us. We’re proud of the system that we’ve come up with. We’re always learning. We’re always trying to improve. We’re happy with what we’ve been able to do.

Remote Jury Trial: The biggest key in remote trials is to ensure that the jurors have plenty of breaks.

It sounds like so much work has gone into it but you’ve gotten great results out of it. You mentioned objections to virtual proceedings. Have the people that have gone to trial so far wanted to go to trial? Was some of it voluntary and some maybe not as voluntary?

With the child welfare cases, the district attorney’s office handles those on the prosecuting side. All of the child welfare bars were well aware that we needed to do this. It felt a little bit like those objections were less because they didn’t want to do it and more because they felt like they needed to preserve the appellate record, which was completely understandable. With the civil cases, I’m talking about the personal injury case and the commercial litigation case, I didn’t have any objection in the commercial litigation case. I don’t think anybody objected. They both were ready to go to trial. They wanted to go to trial. They felt comfortable and confident in the process that we had in place. In the personal injury case, the defense attorney had objected. At the conclusion, he was one of the ones who said, “I had my doubts, but this was great. It worked efficiently and well.”

I had written objections in almost every case that is scheduled for a virtual trial. We had a lot more in November and December 2020 than we have now. That’s because they watched on YouTube and they saw that it’s a manageable way to conduct a jury trial and they’re not as concerned that someone’s due process is going to be violated. Those were the concerns we were hearing in the fall, “You can’t do this. This is terrible. You’re going to violate people’s due process because you can’t see them.” One of the worries was, “How can you control the juror’s attention?” A lot of the things that we were talking about earlier, because many of the concerns that were articulated in written objections were addressed, a lot of those objections have gone away by us tackling the problem.

We want to get to some virtual courtroom tips from you before we get ready to wrap up. We’re all inundated with Zoom. Zoom fatigue is a real thing. What approach have the courts taken to try and combat that with virtual jury trials? Sitting through on-screen for 6, 8 hours a day, that’s a lot.

The biggest key for me is to ensure that our jurors have plenty of breaks. That’s the case in in-person jury trials and virtual jury trials. Zoom fatigue is a real thing. It affects you, me, and all of us. I have a firm schedule for my jury trials and I try hard to stick with it. I found that it helps people with Zoom fatigue and it also helps to ensure that people show up on time. Jurors know that if they come later than 8:45, they’re going to be the last one. They don’t like to be the last one because they know we’re going to start right at 9:00.

I like to keep things running right on time. They know we’re going to start at 9:00. They know that between 10:00 and 10:15, we’re going to have a break. They can plan and they know that if they need to talk to someone, they can do that in those breaks. I give a long lunch. If the attorneys and I need to talk about an evidentiary issue, we can do it over the lunch break. I give jurors from 12:00 to 1:30. They love that because they can go for a walk, play with their dog, they can check emails and phone calls, and all that.

Another longer break from about 3:00 to 3:30 in the afternoon. We break no later than 5:00. Unless everybody agrees to stay after 5:00, we break before 5:00 and let everybody go. This helps with efficiency even though it’s a lot of built-in breaks. The breaks allow people to be able to take care of life, which happens when they’re stuck in a jury trial. That’s important. Do you want me to talk about the things that are important for preparing a witness or your client for a Zoom jury trial?

Yes, please. We would love to hear whatever virtual tips you want to share.

We’ll take them all.

These are the things that are important. This will help lawyers to be prepared for their Zoom jury trial. You first want to make sure that your client and your witnesses have the Zoom login credentials, at least 30 minutes before they are to appear. You need to practice how to connect to audio, how to mute and unmute, how to start and stop a video, and how to enter and leave breakout rooms. Those are the bare minimums that you should be working through with your clients and your witnesses before trial, not on the day of trial.

Ensure that the witness has an electronic device that’s not a phone. Many witnesses appear in our virtual courtrooms on their phones and they’re in portrait mode instead of landscape. We can’t see them. They might be in their car driving or something like that. It seems intuitive but make sure to communicate to witnesses and clients that they need to be in a quiet space, free from distractions with adequate lighting, a reliable internet connection, and not on a phone.

Make sure that you can see them centered in their Zoom tile and not where all we can see are their eyes or we’re seeing some other part of their body that we shouldn’t be. Make sure that they silence any audible notifications on their computer. During testimony, people will say, “I have my phone off,” and then we’ll hear the little sound notifications for email when they come in. It’s disruptive. Take the time to tell your clients and your witnesses to silence all those notifications.

They also can’t have any web streaming in the room because it creates feedback on Zoom, especially if they’re streaming the trial that we hear immediately and it happens. If the rule has been invoked, you need to communicate to your client that they are not to watch the trial. What’s going to happen is if you haven’t communicated that to them, I’m going to wind up asking them and we’ll have a situation where potentially that witness might not be able to testify. Make sure to communicate that.

Make sure that you instruct your clients and your witnesses not to look at any documents or devices while they’re testifying. I had a situation where an attorney was communicating with his witness on the phone. Not only could I hear the sound notifications but I could tell. I can see when their eyes are looking at a phone. I can tell when people are communicating with someone else during their testimony. It’s easy to tell if they’re looking at a document. Make sure to tell them that they need to focus on their own recollection of the facts and not be looking at anything else unless they’re specifically instructed to do so. Make sure that they know the process of looking at a document before it’s admitted and how to review the witness viewing folder.

In Travis County, make sure that if they don’t have access to the internet or a quiet space, you reserve a Zoom room from us. If there’s going to be an interpreter, make sure to let us know in advance so that we can set up a Zoom interpretation function or we can get that interpreter sworn in and that process is efficient as well. Those are the big ones that I want to make sure everybody remembers. If you can do those ten things, everything will go much smoother. Those are the big ten.

You’ve got some tips on how to handle the virtual courtroom itself. It would be worth our while for you to run through those. Client witness prep and how to deal with the folks outside of your immediate control are important. Advocacy has changed a bit in the age of Zoom. There are some folks that could stand to hear these reminders and not as a criticism but maybe something that they haven’t thought of. It’s not necessarily obvious. I’d love to hear you run through those too if you’ve got those handy.

The number one protocol for jury trial conduct is to conduct yourselves at the same level of decorum as if you were physically present in the courtroom. Remain muted when you’re not speaking with the court or the jury. Inevitably, someone’s dog is going to bark or there’s going to be some loud sound. Make it your practice to mute yourself unless you’re speaking. Unless they’re speaking with the court or the jury, make sure that your trial team has their video is off. That way, we can focus on the Zoom tile of those who are actively participating. We want to make sure that people are visible at all times in their Zoom tile. Make sure that you don’t turn off your video if you are actively participating. If we can’t see you, we don’t know if you’re hearing what the court says, we don’t know if you’re hearing what the witness says.

For the lawyers, make sure that you’re in a separate room, free of distractions from anything else that’s happening in your house. We understand that if you need to be in your house. Make sure that it’s a quiet space with no distractions. Use headphones or earbuds to prevent household noise. For the jurors, we want to make sure that no one can hear their deliberations. For the attorneys, we want to make sure we can hear all your words. That is important. A good microphone, whether it’s through the webcam or a separate microphone, is as important as it is for your podcast. We’d be able to hear you.

Alert the judge or the court personnel if you’re having any technical problems at all. You have to let us know because with many tiles, particularly in a jury trial, we could lose someone and not know it. As a host of the Zoom, I can hear a chime when someone leaves. One of the things I talked about with the jury and the lawyers is we’re all watching. We all have to work together because we don’t want to lose a juror. We don’t want to lose a lawyer. We don’t want to lose a witness, a party, anybody who is essential to the trial. We need to know how to reach you, lawyers, parties if you do have an internet outage or anything like that. Keep to our schedule and stay on time. If you follow those things, you should be successful. Did that cover what you were thinking about?

I think so. You mentioned courtroom decorum and you’ve already covered exhibits and so forth. Maybe talk for a minute about backgrounds.

It’s important that you have a professional background. Let’s talk a little bit about some things, electronically, you want to make sure that you do before your trial or hearing. The number one thing, make sure that you go to Zoom and you have updated your Zoom so that on the day of your hearing or trial, you’re using the most recent. Zoom has been great to continuously update any type of problems that they’ve been having. They’re constantly, almost weekly updating Zoom. It also allows 49 tiles. Previously, if you’re using an old Zoom update, it only had 21. For a jury trial, you need to make sure that you can see all of your tiles on the screen. That’s important during jury selection. You should have a wide enough screen monitor so that all 49 of those tiles show up. If you’re using a small screen, you can’t see all the Zoom tiles. It’s important to have a widescreen monitor for use during a jury trial.

One thing you mentioned before we got started was about sharing screens.

Perhaps the most important thing that you can do to ensure you don’t embarrass yourself during your trial is to learn how to share screens. It’s going to be important that you know how to do that for admitting exhibits, showing demonstratives, using a PowerPoint presentation. It’s important that you learn the function on Zoom that says, “Advanced feature.” If you go to the little green button on the bottom that says, “Share screen.” If you click it, you get to an advanced function. At the advanced function, you have the ability to only share the portion of the screen that you wish to share.

On more than one occasion, I’ve seen people’s screens and I can see their emails, their instant messages. I can see things that they don’t want me to see. I encourage everyone to practice. Use a monitor that you’re not using for your emails, your IMs, and the things that you don’t want to be seen by the court and the jury. I use three different monitors. Before, I would have said I’m not tech-savvy. Now I’ve become by necessity. I have three screens. One is my electronic file for the court. The center one is the two Zoom screens, both the speaker view and the gallery view. I have the email that lives behind that. It’s not that I can ever get to it but when I’m in a jury trial if someone needs to reach me that way. My third is my exterior laptop. On that, I have YouTube so I can see if anything goes awry on YouTube. I also have the real-time transmission from my court reporter. It’s being sent to me remotely. It’s pretty amazing.

That’s got to look like a cockpit.

I was thinking about that.

Remote Jury Trial: The number one protocol for jury trial conduct is to conduct yourselves at the same level of decorum as if you were physically present in the courtroom.

It does. It feels a little like a cockpit.

It’s come a long way from when we first started when you guys were using your Surface Pros and were having trouble accessing the documents.

That’s what I use for my electronic file. I still use the Surface. They provided a large widescreen monitor for me where I can see people and I can see the documents. It’s been great. Travis County has been supportive of our virtual proceedings and helped us to be able to do all of this. I use my own laptop for the third stream but that’s okay. Anybody can do this with a small enough budget. I tell lawyers, “Go to Goodwill and they have 100 monitors there at every size.” You can pick up a widescreen monitor for under $50. You don’t have to be on a big budget to be able to get one of these widescreen monitors.

We’ve gone past the time that we usually have allotted for this but this is all great information.

Thank you so much.

Thank you so much for being with us. Jody, maybe we ought to go ahead and dedicate this episode to the trial lawyers since mostly what we’ve talked about is within their purview. One other point that I thought I would bring up is that this is a model for other states, to the extent that we are going to continue to have virtual proceedings, virtual jury trials specifically. I’m certainly proud of what the Travis County judiciary has come up with. You’ve also created some resources that could be tapped into. The Travis County virtual jury trial procedures, are those published on the court’s website?

Yes. They are on our main website. If you go to Travis County Civil District Courts, there are several resources there. That’s one of the links. You can go right to the procedures there.

My interest here is in sending or making available resources for other courts and jurisdictions that are interested in adopting procedures like this. I know you’ve been giving some talks in other states. We mentioned Chicago. I know you spoke to the Dallas Bar, California even. There’s no other description—this is a big deal, what Travis County has done. We’re getting toward the end of the pandemic but we don’t know when we’re going to be back to normal. I’ve heard the statistics, the backlog that has been built up so far is quite staggering.

Adopting procedures like this may be a way, even if we’re able to get back to some live proceedings, to help move cases along that don’t have to be done live. I want to encourage anyone interested in this to check out the model or the procedures that we’ll make available. Also, I want to inform the judiciary or bar associations in other states on how they can approach the Travis County judiciary or you, in particular, Judge, to give more educational sessions on this topic.

They are welcome to reach out to me. One of my favorite things to do is to talk about how we’ve collaboratively created these systems and procedures. I’m thrilled and happy to help any judge who wants to set up this type of remote jury trial procedure. They can reach me at my email address, I’m happy to answer any questions that they might have and provide scripts that I’ve amended and procedures that we use and anything that they need to help them feel comfortable. I also have several resources on my court YouTube page. A lot of the mock voir dires are on there. I can send them links to all of the days of our four jury trials that they wish to look at so they can see how it works or the recording of the Zoom. I’m happy to provide all of those.

I wanted to share some statistics with you guys because they’re important. David Slayton shared that in 2019, before the pandemic, Texas had been trying over 10,000 jury trials a year. In 2020, there were 222 jury trials in Texas. In Travis County, in 2019, we had 78 jury trials and we had 17 in 2020. I’m talking about the district court in Travis County. The pandemic has put the brakes on access to justice. This is one way that we’re able to allow people to get back to court and back to juries. Whatever we can do to help other communities make that happen, we’re happy and willing to do it.

I want to also note Madeline Schlesinger, my court staff attorney, Jamie Foley, our court reporter, Grace McGee, my judicial executive assistant, Nicanor Valdez, and Tanya Watson. That team has made all of this possible. Without them, we wouldn’t have been able to come up with all these ideas and procedures. I want to recognize their hard work.

This is incredible. You’re gracious. We appreciate you spending so much time with us. Thank you again, Judge. It’s been a pleasure.

It’s been my pleasure. Thank you all so much for the invitation to be here with you. I’ve enjoyed it very much. Take care.

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About Judge Karin Crump

Judge Crump has served as the presiding judge of the 250th District Court since January 2015.

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