Three prominent trial lawyer organizations have filed amicus briefs with the Texas Supreme Court in support of parties involved in an automobile crash lawsuit who are fighting against a judge-ordered remote jury trial.
Jeanna East, who is the plaintiff in the underlying proceeding before Harris County District Judge Dedra Davis, and Owen J. Merrell, the underlying defendant, joined together in urging the Texas Supreme Court to undo the order that was entered over their joint objection.
Last week, the Texas Trial Lawyers Association, the Texas Chapters of the American Board of Trial Advocates and the Texas Association of Defense Counsel filed individual amicus briefs with the state’s high court, arguing the remote proceedings are unconstitutional.
The TTLA told the court in its Aug. 10 brief that under the 52nd Emergency Order issued by the court in the wake of the COVID-19 pandemic, the trial court must ensure “that all potential and selected petit jurors have access to technology to participate remotely.” And Texas lawmakers have passed legislation requiring that remote jury trials must be agreed to by both parties, TTLA wrote, but Judge Davis “disregarded these guiding principles when she ordered a virtual trial over the joint objection of all parties.”
“Our country has come a long way since the exclusion of citizens from jury service based on race, gender, and property ownership,” TTLA wrote. “Requiring jurors to possess the technological equipment and internet access to participate in a virtual trial lamentably steps backward to anachronistic limits on jury service. This de facto property requirement will prevent the parties from picking a jury from a fair cross-section of the community.”
TEX-ABOTA told the court in its brief filed Aug. 11 that two major things are at stake in this case: a citizen’s constitutional right to serve on a jury, and litigants’ constitutional right to a jury “free of bias, drawn from a fair cross-section of all potential jurors who are eligible to serve.”
Judge Davis’ order, the group said, “unconstitutionally narrows the eligible jurors who would otherwise be entitled to serve in an in-person trial.”
TEX-ABOTA quoted testimony from a Texas Supreme Court Advisory Committee meeting that took place May 27 during which many well-known attorneys — including Chip Babcock of Jackson Walker, Alistair Dawson of Beck Redden and Rusty Hardin — expressed concerns about the use of remote jury trials when all parties haven’t consented.
A court reporter at that meeting, David Jackson, told the committee that it was difficult to keep an accurate record in a virtual jury trial.
In its Aug. 12 brief, TADC recounted for the court the litany of issues detailed in an earlier mandamus proceeding opposing a separate remote trial before Judge Davis, In re Reginald Willis.
“Jurors have been reported to drive cars, disappear off camera, play video games, prepare meals, use their cell phones, watch television, play with pets, type on a computer, or vape during virtual court proceedings,” TADC wrote. “The artificial environment makes it much more difficult for jurors to pay attention to witness testimony and other evidence.”
In that case, the Texas Supreme Court stayed proceedings before it was transferred to Harris County District Judge R.K. Sandill, who held an in-person trial. The case ended with a $352.7 million actual damages verdict against Allied Aviation Fueling Company of Houston.
TADC also raised concerns about the ability of courts to enforce “the rule” which ensures witnesses don’t hear the testimony of other witnesses by barring them from the courtroom.
“Placing witnesses under the rule is intended to aid in ascertaining the truth by preventing witness collusion and one witness’s testimony from influencing another witness’s testimony,” the group told the court.
The First court of Appeals in Houston issued an opinion on July 8 denying the requested relief without explaining its reasoning. The case came to the Texas Supreme Court when Merrell and East filed the petition for writ of mandamus on July 11.
TTLA is represented by its president, Quentin Brogdon and John Gsanger of The Ammons Law Firm.
TEX-ABOTA is represented by Brian P. Lauten of Brian Lauten PC and Cynthia Diggs of Diggs & Sadler.
TADC is represented by Jennie C. Knapp of Underwood Law Firm PC.
Merrell is represented by Kevin G. Cain, Robert T. Owen, Levon G. Hovnatanian, W. Shane Osborn and Krista A. Beerbower of Martin Disiere Jefferson & Wisdom.
East is represented by Kimberly Spurlock of Spurlock & Associates.
The cause number is 22-0556.