Zooming In on the Impact Florida's Remote Civil Jury Trials May Have on Appellate Standards of Review.

AuthorCanfield, Rachel A.

Appellate standards of review are the lenses through which an appellate court reviews a trial court's decisions. (1) Based on a paradigm that recognizes the institutional advantages of trial courts and appellate courts, they define how much deference an appellate court must pay to a trial court's ruling. The institutional advantage most often cited as the basis for appellate deference is the "superior vantage point" of the trial court; meaning the trial court has a better perspective because it personally observed the parties, argument, and presentation of evidence.

This paradigm has endured, in part, because the judicial branch is entrusted with great responsibility and, as a result, proceeds with an abundance of caution before it implements change. (2) The right to a jury trial, for example, is one of the most basic, fundamental rights, (3) and, as such, has been executed in much the same way for over 175 years, in-person. The record, too, has been prepared in the same way, by written transcript. Therefore, the trial court's superior vantage point persists because the appellate court's review is limited to cold transcripts.

That is, until now. After the coronavirus (COVID-19) global pandemic brought civil jury trials to a grinding halt, the Florida Supreme Court implemented an unprecedented pilot program to determine the viability of remote civil jury trials. These remote trials are conducted through a videoconferencing platform that also records the proceedings, and the recordings are archived online for public access. This article examines how those recordings might eliminate a trial court's superior vantage point and impact the standards of review as they exist today.

Courts, Technology, and Florida's Remote Civil Jury Trial Pilot Program

The judicial branch is steeped in time-honored tradition, in part because it is tasked with great responsibility, including to interpret and apply the Constitution and law, and administer justice. (4) Inherent in its attempts to accomplish its aims is its reluctance to change. For example, although video-recording capabilities surfaced in the early 20th century, it wasn't until the 1970s that any court permitted broadcasts of its cases. Markedly, Florida courts were the first. (5) Even still, half-a-century later, the U.S. Supreme Court continues to impose a complete ban on cameras. Justice David H. Souter memorably remarked that "the day you see a camera come into our courtroom, it's going to roll over my dead body." (6) Though general judicial attitudes about technology are shifting, (7) ChiefJustice John Roberts has explained the Court's "concern about the impact of television on the functioning of the institution. We're going to be very careful before we do anything that might have an adverse impact." (8)

Notably, Florida has relied on an in-person jury system since 1845. However, on March 9, 2020, the governor was forced to declare a state of emergency for the entire state of Florida due to concerns caused by the COVID-19 pandemic. (9) Just days later, the Florida Supreme Court was forced to suspend jury trials due to public health and safety concerns caused by COVID-19. (10) Although necessary, these actions brought civil jury trials in Florida to a grinding halt and disrupted the judiciary's ability to administer justice, forcing the court to consider alternative ways to conduct jury trials while protecting the rights of the parties and the health and safety of the public. (11)

To counteract the pandemic's impact, the court authorized the Remote Civil Jury Trial Pilot Program, (12) through which trials are conducted via a videoconferencing platform "to establish the framework and identify the logistics of trying a case remotely." (13) This decision was not reached lightly--it was made months after jury trials had been suspended, with court backlog growing and no end to the pandemic in sight--but it is not the first time Florida's judiciary has led the way for judicial transparency or the use of technology. (14)

On July 14, 2020, 175 years of precedent changed when Miami-Dade County conducted the state's first (partial) remote jury trial, (15) and again, in August, when the first-ever civil jury trial conducted entirely by Zoom was tried to verdict in Duval County. (16) The remote proceedings are recorded, and their recordings are archived online for the public to access. It follows that these video recordings could one day become part of the record and, if so, may eliminate the need for appellate deference when based on the presumption that the trial court is entitled to deference because of its superior vantage point.

Standards of Review (17)

Standards of review "reflect an accommodation of the respective institutional advantages of trial and appellate courts." (18) Traditionally, those institutional advantages have been clear: trial courts have a "superior vantage point," (19) because "the trial judge is there" and "see[s] and hear[s] the witnesses presenting the conflicting testimony." (20) On the other hand, "[t]he cold record on appeal does not give appellate judges that type of perspective"; (21) instead, they "are structurally suited to the collaborative judicial process that promotes decisional accuracy." (22)

Florida's appellate courts review: 1) conclusions of law de novo; 2) discretionary decisions for an abuse of discretion; and 3) findings of fact for competent, substantial evidence. (23) The standards are legislative or judicial constructs designed to judiciously address harmful error (24) and they correlate the amount of deference paid by an appellate court to the amount of discretion permissibly exercised by the trial court. (25)

Conclusions of law are reviewed de novo, which is Latin for "anew, afresh, a second time," (26) meaning an appellate court pays no deference to a trial court's legal conclusions. Appellate deference is not required because a trial court does not sit in a superior vantage point when rendering a legal conclusion or deciding a pure question of law. The appellate court is equally capable of rendering a sound decision, and (27) the answer should be the same, regardless of the deciding court, conduct of the parties, or the evidence. This standard serves to promote the orderly and uniform application of the law. (28) It "prevent[s] unacceptably varied results based on the interpretation of...

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