The Supreme Court of Texas has been asked to decide whether a virtual trial is a real trial.
The question arrived at the court’s doorstep last week. The opposing parties in a multimillion-dollar personal injury case are fighting over whether a Houston judge abused her discretion by ordering a virtual trial, which was to begin on June 8. The Supreme Court stayed that trial date, but has yet to rule on an underlying petition for writ of mandamus that would order the trial judge, state District Judge Dedra Davis, to hold the trial before an in-person jury,
“For nearly 150 years in Texas, a jury trial has meant a trial conducted in-person, with the judge, jury, and parties all present together in the courtroom,” said Joe Roden of Rusty Hardin & Associates of Houston, which is representing the defendant company in the case, Allied Aviation Fueling Co. “Our client has a constitutional right to due process and a fair trial,” he said.
Roden said the Supreme Court’s mandamus ruling could have far-reaching implications for all litigants in Texas. The court could decide, for example, that a trial judge can order a virtual trial without the consent of all parties; or, at the other end of the spectrum, that virtual trials are unconstitutional.
In court pleadings, Roden and his co-counsel, quoting published appellate decisions and other texts, said, “Due process requires an opportunity to confront and cross-examine adverse witnesses. … The importance of presenting live testimony in court cannot be forgotten. … The opportunity to judge the demeanor of a witness face-to-face is accorded great value in our tradition.”
Judge Davis, the defense lawyers wrote, made a “unilateral, arbitrary, and unauthorized decision” to order a virtual trial – because of concerns about the spread of Covid-19 – over repeated defense objections.
The case involves a lawsuit filed by Ulysses Cruz and his family against Allied Aviation Fueling and one of its drivers. In the fall of 2019, Cruz was a member of the United Airlines ground crew at Bush Intercontinental Airport. He was walking behind the wing of an aircraft when, according to court records, an Allied Aviation van ran into the airplane, throwing Cruz to the tarmac. His lawyer, Randy Sorrels of Sorrels Law in Houston, said Cruz’s injuries have left him a paraplegic. The Cruz family is seeking damages that could amount to $100 million.
Also representing the family is Alexandra Farias-Sorrels, Randy Sorrels’s wife and a fellow accomplished personal-injury lawyer.
Rusty Hardin is lead counsel for Allied Aviation Fueling. In addition to Roden, Hardin is working with Ryan Higgins and Daniel R. Dutko of his firm; and, from Jackson Walker, Stuart B. Brown Jr., Brett Kutnick, Justin V. Lee, and Joseph A. Fischer III.
Sorrels said the plaintiffs are not opposed to an in-person jury trial, if that’s what the judge orders. “We’ve said all along that we’re ready to go to trial – any trial,” he said.
He noted, however, that other jurisdictions, including Travis County, have successfully conducted jury trials virtually, using online conferencing technology.
“Is that the wave of the future?” he said. “I don’t know. But I commend Judge Davis for being willing to embrace a technology that has the potential to make our jury pools more expansive and more inclusive.”
Roden had a different interpretation. He said Davis was using the case as a “proverbial guinea pig” by insisting on a virtual trial “without any established rules, procedures or process.” Allied Aviation Fueling’s lawyers noted in pleadings that the judge acknowledged having conducted “zero jury trials through Zoom.” They added that other civil district courts in Harris County started resuming in-person jury trials months ago.
In an affidavit appended to one of Hardin’s Supreme Court pleadings, Carter Hollingsworth, a summer intern with Hardin & Associates, said he watched about two hours of voir dire in an unrelated virtual trial last week in Harris County.
According to Hollingsworth, some prospective jurors who logged in remotely didn’t seem appropriately attentive. Some were in their cars. Some turned their cameras off. Others were eating, playing video games, applying makeup – while being questioned – or talking on the phone.
“While not perfect,” Hardin and company wrote, “jury trials have been refined and honed over centuries to produce the best process for finding the truth. The resulting exercise is remarkably complex and delicately balanced. The legion of significant changes that remote procedures will introduce into the jury trial process will necessarily upset that careful balance without first undergoing the deliberate study and reflection that have always preceded other significant changes to jury trials. That is a recipe for injustice.”