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Volokh Conspiracy

Federal Court Considering Bench Trials by Videoconference

So says an order from Judge Landya McCafferty in the District of New Hampshire.


From the order:

Despite the court's best efforts, there will be delay in the resumption of civil jury trials due both to public safety concerns and a backlog of cases. In the interest of preventing further delay in the resolution of certain civil matters, the court offers the opportunity to civil litigants to have all or part of their suits resolved by bench trial before the court via video-conference.

The court envisions this procedure applying in the following situations:

• where the parties agree that the whole case (i.e. all remaining claims and issues) may be tried before the court; or

• where the parties agree that one or more claims can be bifurcated and tried before the court, such as where the parties lack a right to a jury trial on one claim or claims (e.g. a claim under the New Hampshire Consumer Protection Act); or

• where the parties agree that there are one or more factual issues that the court could resolve that may help progress the litigation, narrow the issues for trial, or advance the case towards settlement.

The court also welcomes litigants' creative ideas about other ways in which the court can effectively and swiftly advance civil matters given the current constraints on in-person proceedings.

The court emphasizes that the opportunity to have all or part of a case tried to the court by video-conference is completely optional. All parties must consent to waive their rights to a jury trial and instead agree to try all or part of a case before the court via video-conference. See Fed. R. Civ. P. 39(a).

Similar experiments seem to be underway in some state courts, too (I've heard of them in Florida, Georgia, and Texas) and a video trial took place in federal court in Virginia. If you know about more courts trying it—or, more importantly, if you know how well or badly this has worked out if it has already been done—I'd love to hear more.