As the Coronavirus pandemic continues to impair the ability of trial courts to carry out their normal functions, for an increasing and indefinite amount of time, a backlog is building for those cases that courts must dispose of by trial. Indeed, the current restrictions advised by the Michigan Supreme Court and put into practice by most local courts do not identify civil trials as an “essential function”. Michigan Supreme Court Administrative Order 2020-2. The more these unresolved cases accumulate during this period of quarantine, the less likely the trial courts will be able to resolve them all in a timely manner. Given that the responsibility for concluding cases also rests with counsel, and in the face of a restricted judiciary, counsel will have to become creative in finding ways to dispose of cases ready for trial in the face of this pandemic.
One of the technologies championed by the Michigan Supreme Court in Administrative Orders 2020-2 and 2020-6 has been the use of two-way audiovisual conferencing between the court and the parties. Nothing in the COVID-19 Orders prevents the parties and the court from conducting a bench trial via videoconferencing; in fact, Administrative Order 2020-2 specifically authorizes the practice. While far from traditional or ideal, trying a case via remote videoconferencing may be the only means of conducting a bench trial until the undetermined time when access to the court becomes less restricted.
While remote videoconferencing may allow a court to conduct a bench trial, it is impractical for conducting a jury trial. Furthermore, even when COVID-19 restrictions are relaxed, the backlog of jury cases will be extensive and criminal jury cases will take precedence over civil jury cases. Further, given social fear about the Coronavirus, even with restrictions relaxed, finding jurors willing to serve may substantially diminish the size of jury pools. So, what can a party who has demanded a jury – and who has a constitutional right to a jury – do to preserve its right to a jury trial in a timely manner? One thought is the use of a “private jury”. The concept operates as an arbitration, under the framework of the Uniform Arbitration Act (and would require an agreement of the parties to stay the existing case in favor of arbitration). The difference from traditional arbitration comes when, instead of the arbitrator giving an award based on his or her findings in the case, the parties agree that the arbitrator’s award shall be based on the private jury’s verdict. This process would require, among other things (1) finding an arbitrator to serve as the administrator of the trial and make evidentiary rulings; and (2) identifying, locating, and soliciting a group of potential jurors from the county at issue (a service typically provided by jury consulting firms). Finally, given the social distancing restrictions likely to be in place at the time of the trial, the parties would also have to locate a suitable venue that could accommodate a jury pool’s social distancing needs. Of course, using a private jury would also increase the costs in the litigation – including the costs associated with the arbitrator, the jury consultant’s fees for assembling the jury pool, and the jurors themselves. But these costs may be acceptable, if the alternative is a lengthy delay before any civil juries are available.
Arbitration With Strings Attached
The most traditional remedy when a court is not able to meet the parties’ needs for speedy trial resolution is a private arbitration. This type of arbitration usually requires an agreement of the parties after the fact – the court cannot compel parties to binding arbitration in the absence of an agreement between the parties – and can be difficult to achieve where one party believes that the judicial forum favors its claims or defenses. Nevertheless, to induce a party to proceed in arbitration instead of waiting for the juridical forum, certain parameters can be negotiated into the arbitration agreement. For example, the parties could agree to re-opening dispositive motions to be heard de novo by the arbitrator; the parties could agree to set a high-low on any arbitration award guaranteeing a minimum and maximum range for the award; the parties could agree to allow greater appeal rights than traditional arbitration (or for a private appellate process). Given Michigan’s statutory commitment to enforce arbitration agreements as written, the parties have wide latitude in crafting arbitration provisions they desire to protect their clients’ interests.
Authored by: Stephen McKenney