Originally published by D. Todd Smith.
While some counties have many district courts, some district courts have many counties. Few judges have a larger territory to cover than Judge Roy Ferguson author of the 394th District Court. Given the size of his district, with few local attorneys, Judge Ferguson served as one of the early adopters of remote proceedings when COVID-19 hit. In this conversation with hosts Todd Smith and Jody Sanders, he shares how the adoption of virtual technology improved access to justice in his district and benefitted citizens, parties to litigation, and their counsel. Judge Ferguson also conducted one of Texas’s first virtual civil jury trials and deconstructs his experience for the benefit of our listeners.
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Deconstructing a Virtual Jury Trial | Judge Roy Ferguson
Welcome back to the show. We have with us Judge Roy Ferguson from the 394th Judicial District Court. He serves a very geographically diverse area out in West Texas, consisting of Brewster, Culberson, Jeff Davis, Hudspeth, and Presidio counties. Judge, welcome to our show.
Thank you very much. I’m looking forward to it.
Did I get the jurisdiction right? I know it’s spread out but is it geographically diverse?
I have everything from the bottom of the Big Bend up to the New Mexico border, not including El Paso. We go from Presidio down on the river at about 2,000 feet above sea level, up to Jeff Davis, which is a mile high or above. We level off and head to El Paso. Del City is the furthest North. I go right up there by the New Mexico border. Diverse if you exclude anything with water. We get some altitude diversity but arid throughout.
This is an appellate law show. You’re not the first district court judge we’ve had on the show. We’ve had a few but we do find that talking to district court judges can be very informative to folks that we aim this show to. We’re going to talk a lot about your experience with conducting remote jury trials. Let’s talk a little about your background, what led you into the law and maybe your early career as a lawyer?
I have an Engineering degree, which of course dovetails naturally for everyone into the legal practice. The bottom line was, as I was going through engineering school, I realized that probably wasn’t going to be my dream job. There was a dream job out there for me and that was they were starting to build Euro Disney. I decided I would apply for a job as an engineer designing and building Euro Disney. If I got it, I would be an engineer. If I didn’t, I would go to law school. Obviously and probably thankfully for me, I did not get that job. I did go to law school and went from there.
I’m privileged to say that you and I were classmates at St. Mary’s Law School. I certainly remember you well from those days. It’s always good for me to compare notes to my peers and realize what a slacker I am because no one calls me, “Your Honor.” Many of my peers have attained that. After law school, what did you do early in your practice and what led you to the bench?
You may remember, I got out of law school early, and that was because my wife had graduated from UT Law a year ahead of me when I would have graduated. I was absolutely convinced that by the time she got to Houston downtown working with all those young, aggressive good-looking lawyers that somebody was going to try to steal her from me. I took 24 hours a semester in my second year and got out early and then moved to Houston where she was already working. I moved and worked there in Houston for four years. After that, we decided that we’d had enough of that. We were at the point where what you do from that point on is amass like cars, money, kids or whatever it is. You’ve reached where you’re going to be and now you build.
We decided that we didn’t like what we were building. We weren’t happy. We decided to shop around and, long story short, we ended up in Marfa. My predecessor on the bench, Ken DeHart, when I walked in and having been rejected by twenty district judges at that point in small towns saying they didn’t need us, he said, “If you move here, I’ll keep you busy.” I said, “I’m going to take that as a yes.” We went back, sold our house, sold our cars, liquidated everything and we moved to Marfa. We never looked back.
We talked about geographical diversity, cultural diversity between Houston and Marfa, what a great opportunity for you. That’s very impressive that you did that. When you say keeping you busy, would it be open practice? Did you and your wife go into practice there in Marfa? What did you wind up doing when you first got to Marfa?
I put an ad in the paper that said, “If you’ve ever wanted to talk to a lawyer, now is your chance. I won’t charge to talk.” I rented a space in the closed El Paisano Hotel. It wasn’t open but there was a guy who was the caretaker of the building so it wouldn’t get damaged. I asked him if I could rent a space in the atrium where the big fountain is. It wasn’t at the time but is back now. He said yes and he charged me what he thought was a reasonable $37 a month to have that space. I set up a folding table and a computer and opened the door and put that ad in the paper. What Judge DeHart was saying was there’s a lot of work here. There are a lot of people that need help.
Sure enough, within a week I had a line out the door every day of people saying, “I’ve always thought that I had this ride or that I was being taken advantage of but I’ve never been able to ask.” I interviewed hundreds of people in literally a line out the door all day, every day. Sometimes you can help them, sometimes you can’t. Sometimes you help solve the problem while they’re sitting there. I had someone come in one time with an email that she’d gotten from a Nigerian Prince telling her that there were millions of dollars for her and she wanted to know how to do it. She wanted me to help her get it. That’s the thing you do when you’re a small-town lawyer. You’re like the doctor who when a kid eats too many candy bars, they take their kid to the doctor because they’re worried the kid has poisoned himself on chocolate. You still take care of them.
That became what my life was. I was that community’s legal helper. That turned into a very busy practice. In a little town of 2,000 people, I ended up having over 3,000 clients in the Tri-County area. It was a wonderful career. Talk about a great way to be a lawyer, everyone trusts you even if you’re on the other side. It’s a great way to be a community participant. You feel like you’re sheltering that community like it’s your job. You feel a responsibility like a parent, knowing that they’ll come to you when their worst moments happen. When somebody dies or whatever it is, you’re the one they come to first.
I try to encourage lawyers, including young lawyers, don’t be afraid of small-town practice because it’s so personally fulfilling. You may not have a mortgage that’s $400,000 and two Mercedes in the garage, but what you will have is people that come and mow your yard sometimes. They’ll come tune-up your lawnmower because they heard it sputtering when you were using it the last time. It’s a different life. You get a sack of Hickory nuts. That’s real, that happens. It’s a wonderful career. I wish people would not feel like the only way to succeed is federal clerkships, high-rise downtown, mortgage, and car loan because it’s not true.
What a wonderful picture you painted for us there. That’s great.
Virtual Jury Trial: If you come to the court of appeals from a trial bench, you might have a different perspective than if you go straight from the practice into the appellate bench.
I was going to say it’s certainly an area that traditionally ends up being underserved. In Texas, a lot of small towns have a dearth of lawyers. It’s great to hear someone out there preaching it’s a great place to be and a great way to structure your life if that’s what you’re looking for. I love hearing that.
I have counties with no lawyers. I have one county with zero lawyers, not even a county attorney. I have one county with one lawyer and it’s the county attorney. When you see the maps of what they call legal deserts, big areas, no lawyers, a couple of my counties look great. They look like they’re better than the cities but they forget that a lot of the lawyers don’t practice community law. They might be a federal prosecutor or a federal defender because we have federal courts and magistrates here. If I have twelve lawyers listed in a town, there might be 1 or 2 that do community representation, and the rest are captive for border patrol or federal court or public defenders. I’ve got this enormous area and a handful of 5 or 6 lawyers who actually do community representation. It takes 6.5 hours to drive from one point to the other of my district.
Did you say it’s larger than the State of Rhode Island?
It would be the tenth smallest state. There are nine states smaller than my district. I’m behind West Virginia. It’s big and a lot of driving.
I’m trying to imagine for your run of the mill family law case or something like that or the criminal doc. It can be very highly-charged, emotional but at a time, it must seem like it moves at a different pace out there across many different areas, when one of which is getting a lawyer to the courthouse. That’s unbelievable.
Think about the way fees work. We sell time. As lawyers, what we sell is time, unless you do a flat rate work. I’m talking about hourly lawyers, litigation. If there is no lawyer in the area that does a particular type of law that you need, then you have to go to the city, which is a minimum three hours away because that’s how close the near city is. Even assuming you got a lawyer in the closest city, El Paso or Midland-Odessa, for every hearing, pre-pandemic, that’s six hours of drive time minimum. If they’re $300 an hour lawyers, you’re at sitting in at $2,000 for literally a fifteen-minute hearing. I have lawyers from Dallas and Houston that represent big clients where we are, and they’re aghast at what it takes to get to our hearings.
The nice thing is I can encourage them to resolve your motions to compel by agreement because if you have to come here to present five requests for production and you’re in Dallas and they’re in Houston, you are going to fly to Midland, rent a car, drive three hours, get a hotel room the night before and then I’ll see you in the morning at 9:00 until 9:30. You can do that all backwards. That could be a $5,000 expense for a motion to compel that they should have worked out in ten minutes. It is very different. We encourage people to use local counsel, but we tend to, as lawyers, to think no one can do it better than we can. It’s hard to trust somebody on a matter like that. Everybody should consider in small towns for a number of reasons hiring local counsel to save you that money. We don’t have that problem with Zoom. Zoom has eliminated all of those wasteful expenses.
How long have you had your dabble on the bench now, Judge?
I was elected in 2012. I took the bench on January 1st, 2013, and I was re-elected in ‘16 and ‘20. I finished eight years.
Are you a general docket? Do you handle criminal cases too or are you civil? I imagine in your jurisdiction, you probably do it all.
I am the district judge, so I do it all.
You told us before we started recording something that I thought was very interesting. You’re actually sitting by assignment with some regularity on the Eighth Court of Appeals out of El Paso. How’s that experience been for you?
It’s fascinating. If you come to the Court of Appeals from a trial bench, you might have a different perspective than if you go straight from the practice into the appellate bench. Being a part of the people who grade the papers when I’m also taking the tests, it has been interesting. McClure brought me in in 2013 by special assignment for a particular case. They brought me back occasionally when they needed me. I can’t remember exactly what triggered it. It may have been pandemic but I got a blanket assignment from Chief Justice Nathan Hecht assigning me to cover the court. As they need me, they can use me and it comes and goes, depending on what’s going on with the court. They’ve had some changes in the court. A couple of new justices and another is moving off. When that happens, obviously they need someone to step in. I’ve been one of who knows how many that are willing to do it, and I enjoy it.
Have you done any Zoom oral arguments as part of your sitting with them?
No, but I have nine coming up. I’ve done over 1,000 virtual hearings, so it is tricky to remember but I’m fairly certain I have not had a virtual oral argument. We’ve had some virtual case conferences but not oral argument.
Young lawyers shouldn’t be afraid of small-town practice because it is so personally fulfilling.
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One way that you’ve come to our attention, aside from the fact that I’ve known you for many years, it seems like that’s incredible to think about, is you’re very active on Twitter. Your commentary quite often goes well beyond things that a trial judge handling prior cases might care about. You’ve been very vocal about this whole idea of Zoom hearings and you’ve been a leader in terms of helping to encourage and train the judiciary on how to use the technology and advising your fellow judges on this process. How did you first get involved in Twitter and how do you see it as being valuable for you?
I joined Twitter because Justice Guzman had posted a link to something related to the Children’s Commission, which I am a big supporter of. I believe I joined Twitter for the purpose of following her and getting whatever that was. If you go back and go through my friends, I’m fairly certain she is followee number one for me. I watched to see what it was all about. I learned to fight the urge to talk about things that motivate me politically, which is the hardest thing to do on Twitter because that’s 99% of Twitter. It’s ramped with politics. Once I felt that I had mastered that desire, then I was able to get a little more involved, and quickly the focus shifted to virtual hearings and Zoom. I decided to use that opportunity to uplift and teach rather than rant, as so many seem to like to do.
I see your stuff regularly, and between you and Judge Miskel and David Slayton and Blake Hawthorne and a few others, you all have been the key in helping move our justice system along as we’ve suffered through not only this pandemic but also the computer virus situation that we faced at the appellate courts. The way that Twitter came together and banded in that situation was a plus. It’s been nice to see not only appellate judges and court staff getting involved in this, but also district benches, district judges who aren’t in the next city over or 1 or 2 hours away even. It’s been fun to watch you and have your input on these things.
This is a little off-topic but having no history with Twitter when I joined it, I had no idea how and whether judges used it at all. Very quickly, Judge Burgess and some of these other judges who are extremely active came to my attention. You can imagine how quickly that link can happen through the appellate law Twitter. I was trying to find my way but remember that the cannons of judicial conduct make crystal clear to us that you are never acting in a personal capacity. Everything you do and everything you say, I don’t care if you’re wearing a swimsuit or a robe on the bench, you are still representing the judiciary. Anything you do that is undignified can be used against you and sanction you or remove you from the bench. I’m aware of that every time before I hit post, tweet, send, or whatever that blue button says.
I’ll bet there have been 1,000 times that I’ve written something and then sat back and thought, “Somebody might take this as not bringing dignity to the bench.” I delete it and move on. Blake Hawthorne and I had never interacted, didn’t know each other’s names until Twitter. He posted something one time where he gently teased someone and I fired back and teased him and he fired back at me and I thought nothing of it because it’s social media, that’s what you do, until I saw the comments underneath it. There were things like, “I cannot believe I’m seeing the clerk of the Supreme Court and a sitting judge throwing shade on each other over something.” I thought, “We’ve got to remember we’re always being watched and it’s not Roy the Clown. It’s Judge Ferguson on Twitter.” It definitely makes you more careful and a lot less the guy that you remember me being in law school.
Maybe it was Judge Willett who said, when he was very active on Twitter, that not only is it a great opportunity for civics education, but it creates an air of transparency that you can’t get any other way. In your situation, Judge, you’re now known because of this connection to lawyers throughout the state. Whereas in your little corner of the state, and I use that word sarcastically, it might’ve been tougher for you to be and not that you’re seeking fame or anything like that but you wouldn’t have the opportunity to connect in quite the same way as you have. It’s been great. I’ve been very impressed with how you’ve been able to contribute to the education of judges and lawyers and the situation that we find ourselves in.
It’s not so much the education side but the actual nuts and bolts side is the main reason why we wanted you to come on the show. Your life before COVID, I take it, involved a whole lot of travel between the different counties. I guess there were courthouses in all five counties and you had to physically go to those locations and maybe it’s old-fashioned circuit-riding is what we might call it. Did you have staff or at least the district, the county had staff, I would assume, in each location but obviously you didn’t have a staff attorney or anything like that. Give us a quick picture into a day in the life of Judge Roy Ferguson before COVID, and then maybe contrast it to what we’re facing now.
That the idea that these rural district courts have staff is, I can’t decide if you’re being provocative or naive or you don’t know, but we have none. We have a coordinator. I have five counties. It’s me and one coordinator and that’s it. It depends on how you count them, but I have between 13 and 17 different dockets and she coordinates fifteen dockets, different interpreters and multiple bailiffs, some of which are captive. It’s different every time, a different clerk. The jails that need to have people call in, it is an unbelievable job that she does. She is one person doing the work of an army. We have no briefing, anything. We can’t get clerks out here because there’s no place for people to stay. Law students don’t want to draw out and try to pay for a hotel to do a free job.
It is a completely different experience from the city judges. They have an administrative judge where they take turns doing local administrative judge work. We are our own local administrative judge. We are also chair of every board. I have two adult probation, two juvenile probation boards. I’ve got four auditors. That’s a long list of administrative stuff and rural judges do it all. Typically, I would drive 3.5 to 4 hours a day between different counties, from one county to another. I would leave early, drive two hours to Sierra Blanca, and I have two time zones in my district. There are only two people who have that. I’m one of the two. I have actually held two hearings at the same time on the same day, physically in two different counties. I have done that.
I had a hearing in Sierra Blanca and Hudspeth County, and in Van Horn and in Culberson County, both at 9:00 AM the same day. I was there in person for each of them, but it was a lot of driving and, until satellite radio, there was no radio. It was me in silence in the car for hours, which is actually nice. When you have children, you do an eight-hour docket and you’re pretty tense when you leave. By the time I get home after two hours of silence and living in my head, I’m pretty happy to be home. The stress is all gone and I’m happy to see the kids and the family. There were benefits to that. Now, I don’t have any driving unless I’m driving to an office. Right now, I’m not in my hometown courthouse because they needed to use that for something else.
Now, I’m driving through 30 minutes each day and I’m in chambers. I am in the courthouse but I am in a closed floor. It is cordoned off at the stairs. I’m the only person on this floor in the building. It’s very safe for COVID purposes. I’m 10 feet away from the courtroom, but I am in chambers with a green screen behind me. The image that you see is the Jeff Davis County bench. I’m actually in the image on the bench that people know me to be sitting at in Fort Davis. It is very different. Eliminating the driving was a huge deal, not as much for me as for everyone else like litigants and lawyers. That’s an enormous difference for them.
I guess your coordinator’s job got a lot easier, at least in terms of the physical side of it, maybe not from the logistical side.
That part is true. She’s working from home. For much of this time, she’s had her kids at home doing remote schooling as well. I don’t know if I’d say that’s easier. I wouldn’t want to try to do that. She is able to work remotely. We have actually been entirely digital since a month after I took the bench. I made that my first job, to eliminate paper, books, and binders. Everything that I need to do, I can do with one laptop and an internet connection. She’s the same way. Now that we use a digital recorder and we don’t have a court reporter, she can actually plug that into her laptop, connect to a Zoom hearing and she takes the record. She and I are a traveling roadshow. No matter where we are, we can hold court anywhere, the same as if I was in the courtroom.
Do you do your dockets differently? I guess in the past, it sounds like you do one county here, one county there, spaced out. Do you intermingle them now or do you keep them separate still?
No, it’s very different. It didn’t take us long to realize that we could make a big change for the better for litigants by rethinking the way we do things. We didn’t hold onto the old ways. We sat down quickly and said, look, “We don’t need cattle calls anymore.” Cattle call dockets are a thing of the past for me. I used to call 80 cases. I’ve had dockets with 200 cases before, and so people would have to be there at 9:00 AM and they’d be there until 6:00 PM and then drive two hours back to El Paso and go to a hotel and then fly out the next morning. That makes no sense anymore because I can be anywhere anytime on a moment’s notice, at a second’s notice. Now, when I have those criminal docket days in Hudspeth County, from the checkpoint of the stars on I-10, she knows what I’m doing in the cases.
Virtual Jury Trial: Going virtual makes things a bit easier. Eliminating the driving is a huge deal for judges, litigants, and lawyers alike.
She’ll put fifteen arraignments at 9:00, and those fifteen people get the 9:00 code. We have a different code at 10:00 and that might be five contested motions of discovery in a criminal case. At 11:00, she’ll schedule five pleas that she knows I have. At 1:30, we might have fifteen more arraignments. We sort the dockets by context, type of hearing, how long it’s going to take, contested versus uncontested. I’ll go from one county to the next. I had one day when we were doing pro se divorce prove-ups. At 8:30, I had 3 or 4 in Presidio County and then at 9:00, I had 3 or 4 in Brewster County and the Jeff Davis. Every 30 minutes, we did nothing but divorce prove-ups all day.
In one day, I knocked them all out. My average pro se divorce case now lasts less than 70 days from filing. It’s a 60-day waiting period. I usually have them done within ten days. I try to get them done on day 61 if I can because why not? I’ve got fifteen minutes. Someone wants to get divorced on day 61. I said, “Lori, throw him in at 11:50 and we’ll do them between 11:50 and 12:00 since we’ve got that little window.” We’ll take care of it. My case has cleared off incredibly fast. I have zero backlogs. What I have is a list of trial-ready cases. It’s not as many as you might think because we’ve been doing so much to get cases resolved. I’ve probably got 10:00 jury trials waiting. That’s it.
That’s not bad when you consider how long we’ve been without them.
I would have done that many during the year. That’s how many are waiting but I have kept my foot on the gas on the cases. I don’t let them out of their scheduling orders. Cases are still resolved. They still have to Zoom mediate and nothing has changed for me. I keep pushing the lawyers to move cases, not the other way around. There’s no waiting for a hearing for us.
You concluded a virtual jury trial as we’ve teased a little bit. We want to definitely hear the details on that, as much as you’re willing to share with us. I like to break it down from start to finish to the extent that there are lessons to be learned and I’m not talking about evidence, I’m talking more about procedures because here we are, there’s still COVID. Even though the vaccine is here and is starting to be dispersed, there are not going to be any big changes coming up on the immediate horizon. As you’ve suggested, we still have this backlog of your cases.
If you listen to David Slayton for any length of time, he will tell you there are probably 6,000 or 7,000, including criminal cases, that are backlogged. There’s a need to move these along. Through David’s work and through the work of you and Judge Miskel and others, we’re starting to see virtual jury trials take place. They were a little slow to take root here. Nobody wanted to do it. Nobody wanted to be the first one to do it, but you just had one. Tell us about it. Was it your first?
It was the first virtual jury trial that I’ve done. I had been urged to do some sooner, but I wanted to make sure that I was comfortable, that we knew everything we needed to know to make it as similar to an in-person and get the highest quality justice possible. I was in no hurry to do that. At this point, Lori and I could basically be a Zoom IT department. We’ve done many of these and I don’t care if it’s hardware or software, if anything goes wrong, I know what’s wrong. I was on a board meeting earlier and it was a board of people who are very computer savvy and they were having a problem. It was a Zoom type of problem, a different platform but a similar problem. I un-muted and said, “Here’s what’s wrong. Just do this and it’ll fix it.”
Sure enough, it did. They’re all shocked. I’ve done 1,000 of these with probably 10,000 participants. I’ve seen every technological problem that can happen. We know what’s wrong, we know what Zoom can or can’t do. We know how to work around those problems. If Zoom can’t do it, we know how to fix it. That’s what saved us in this trial was my coordinator is so good now with these interrelated pieces of software that whenever anything would go wrong, she would have it solved before I knew it was a problem. That’s the secret.
If you’re going to do one of these, either you or someone who works in your department has to be good enough with the hardware and the software that they can fix problems as they happen, no matter what those problems are. That was clear here 2 or 3 times. Where there was a problem, we would reach out to OCA. They don’t know how to fix it. I would send back to a message back to Lori that says, “OCA doesn’t know what to do.” She would say, “I’ve already got it.” She needs a raise.
Now I know I felt comfortable at this point that I was ready, that we were ready. We needed the right case. The lawyers came to me, they had an elderly plaintiff and they had out of town lawyers and corporation defendant. No one who wanted, during the time of COVID, to come together. That is what happened. I didn’t force it on them. I’ve encouraged people to do it. They were the first ones to step up and say, “This is right for our clients,” which is what needs to happen.
It was a civil case, right?
It was a civil case. I have not yet had anyone who wants to do a criminal virtual jury trial. I’m hoping that as they watch some of these trials, if there is something that needs to be tried soon, they’ll be more willing to do it but I can understand their concern.
How did you handle the jury part of it, the summoning of the jury and getting the veneer and all that because that seems like that poses some interesting issues in the Zoom context, especially?
As long as you think of yourself as trying to create justice in a brand-new way, rather than, “How can I tweak the old way and still have it work,” it’s not that hard. When this was finally posed to me and I realized I was going to actually do it, I decided don’t look at it as, “What’s the minimum amount I can change and still accomplish the goal?” I said, “If I were going to do this from scratch and I was given the rules that we have to work within, what would I do?” The first thing I did was create a website. I didn’t have an official court website beyond the counties hosting. I created a website, which you can go see if you want to look. It’s Texas394th.com.
Cattle call dockets are a thing of the past.
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I created it entirely for this trial. Now it’s got a life of its own but I used Google Docs and you can make a questionnaire in Google Docs and link it to your webpage. I created a questionnaire that has all of the information you would have to give on a jury card. That’s a lot in a civil case. It’s a lot of teeny little spaces that people have to try to write in. I converted all of that to a questionnaire. I made it an unsworn declaration with a digital signature and I followed all of those statutes. They do it under oath. They fill out all of the questions. At the end, they do the digital signature on an unsworn declaration. I then sent that to the lawyers and said, “Each of you give me a jury questionnaire of questions that you would ask.” They did, and I incorporated all of those questions into the questionnaire.
When the summons went out, if you ever look at the law and summons, the stuff that has to go in there is not that much. I took out everything about where to appear and when and all of that, and I put the court’s website in a big box and said, “You must, by this day, click here and fill out the questionnaire. Here’s the password.” I gave them a password. When they got the summons, they went to their smartphone or computer, logged in, put in the password, and filled out the questionnaire. All of their answers dump into a spreadsheet automatically, which Lori, the brilliant court coordinator, programmed. If they answered no on a qualification, it took them out. If they answered yes on an exemption, that’s automatic, it took them out.
We ended up with a numerical order in a spreadsheet of qualified non-exempt jurors. All of it automated behind the scenes. All I had to do is get out the spreadsheet, make sure there weren’t any mistakes. Something that would have summoned 100 people, whittled out 50 over 2 to 3 hours, was all done automatically on the website. It took five minutes of our time and zero of the juror’s time, other than filling in the questionnaire. Google Docs and the website with an appropriate new type of jury summons eliminated qualification and exemption just like that. It was done. It gave the lawyers more information earlier than they would have had with an in-person trial, 1 or 2 weeks earlier. That’s a bonus for the lawyers and great for the jurors. When you move into trial, you’ve got Zoom.
Everyone is concerned about cheating. How do you know they’re going to be paying attention? How do you know they’re not going to be watching TV or looking at their phone? What I did was talk to David Slayton, and we agreed thankfully and generously from then that OCA would ship us an iPad for every single potential juror in the panel. We arranged it so that there were two things and two things only: Zoom and Dropbox, that’s all they could do. They couldn’t do anything else. They all came to the courthouse one at a time, picked it up, signed them out, took them home. We emailed them, because of the questionnaire, we had their email. We emailed each one of them a separate time that they were going to log in and we were going to walk them through how to do it as a practice run.
That took three hours on one day and everybody logged in. We helped them get used to it. They had to use that device for trial. If you’re going to do this and anyone watching is going to be a lawyer in one of those cases, you should encourage the court to do that little trick. Make the jurors selected all use the same device provided by OCA or the court, whatever you can do and I’ll show you why. This is absolutely crucial. When you’re in a hearing, like right now, we all have different devices. On my screen, Todd’s looking over here and you’re looking down here at sternum level. I have no idea where I’m looking but we’re all looking in different places. When they’re all on the same device, they’re all looking at the same place at the same time, all the time.
All of their heads are turned the same way. They’re all looking at the same point, no matter how high up they are or off to the side, their eyes are always in the same place. You can actually hold your finger up in front of your screen. They’ll all be looking at your finger. If someone is not doing the right thing, if they’re watching television or if they’re looking at something else or a tablet that’s down below the camera, you know it because everyone’s looking here except one guy who’s looking there. It’s obvious that they’re not doing it. That eliminated the risk of them opening other tabs, having notifications pop up playing around, watching TV, watching a YouTube movie on the side but their sound muted. That was not even a possibility in our case.
There was one person who was doing something else. Everybody looked this way except him. He spent the whole time turned this way, locked on his eyes. We’re not moving around like this. He was on one spot, locked on. I knew that what he was looking at was a distance away because his eyes aren’t going back and forth. If you’re watching a movie on the screen, you’d see me doing this and his eyes weren’t moving. They were at another angle. I could see he was looking outside of the frame. I knew from the very beginning what I suspected was going on. I strongly suspected. It ultimately proved true. The juror was forced to admit that he was not using the device and I removed him from the jury and replaced him with an alternate.
I had already messaged the office of court administration and said, “You need to look at my feed. This is how you can tell when someone is not following instructions. Watch carefully and make them all use the same device.” Most of the fears that I heard from lawyers were eliminated with that one decision. There’s three pieces of technology. There’s Google Docs. If you don’t have a website, that’s okay. You can actually, with Google Docs, incorporate it into the email. They answer the questionnaire in the email and hit send. If you don’t have a website, you can still do it with a single email. Zoom to get in. The last one you heard was Dropbox. The amazing thing about Dropbox that we learned in this process is Dropbox has a free digital signature feature that people don’t seem to know about.
If you upload into Dropbox, there’s a button on the top left, it’s a little pull-down arrow. If you hit that little bitty pull-down arrow, you can create a requirement for a signature. What we did on the charge is everywhere they had to fill something in, we created that in Dropbox and we did the same thing for the signature lines. When they went into deliberate, as they went in, we gave them access to a Dropbox folder that had all of the admitted exhibits in view only and a separate folder that had a form for questions from the jury to the court. You have to fill that out. Every question has to be written and signed by the presiding juror and then the charge for them to fill out.
Using those two buttons, they had a trial on the Zoom button and deliberations and verdict on the Dropbox button. That was it. Sure enough, they sent out a couple of notes properly filled out and signed by the presiding juror. They gave us a verdict form that was properly filled out and signed, as confusing as those can be. It was nothing to it. It’s all free software. It didn’t cost us a dime in software. It was great. The only other change I had to make was I had to tell them in my instructions, “Please consider when you’re selecting your presiding juror, technological proficiency.” I added that one. That’s the story of technology and Zoom jury trial in virtual trial. It’s that easy.
Did you do a traditional voir dire to where you had everybody on the screen and the attorneys were asking questions?
I did. My plan was to do it in groups of twenty. My lawyers, they were smart. They knew that getting fourteen jurors and then maybe two lawyers per side and the judge and a witness and a court reporter and a clerk clutters up your screen for trial. The jurors wouldn’t notice because they’re on active speaker view, one person. For those of us watching everyone, it’s very difficult when you have 25 little bitty squares. They agreed to six jurors and one alternate. On a civil case, there’s no downside to that. In a criminal case, I could see how a defendant might want as many jurors as possible because all you need is one. In a civil case, you still got to have 5 out of 6 or 10 out of 12. There’s no difference for you.
They agreed to the smaller number and that made it a lot easier for voir dire. I did one group of twenty and I used the new feature where I can organize the screen. I don’t know if you know that but the latest update allows us to organize the screen and lock it in place. I organized myself and the lawyers across the top and then I numbered the jurors, juror 1, 2, 3, whatever it is and I put them in numerical order in two rows. The lawyers knew exactly how I locked it in place. It was like being in a courtroom.
People numbered, moving away from you in ascending numerical order. It made it easy to do voir dire. They didn’t even have to do this number, which I’ve seen in some of the other trials, where they have to go back and forth. “Number eight. Who’s number eight?” You see a hand come up. “I’ve got a question for you.” They can go down the line and they don’t have to look down because it was juror number one, John Smith, juror number two, Mary Jones. They could look at the screen and call them by name. The magical lawyers who remembered every name, you don’t need that in this. Everybody’s magical because you can look at the screen.
That is a huge benefit to Zoom. You never forget anybody’s name.
Virtual Jury Trial: The jury response is greater when you’re doing a virtual proceeding than it is in person. Increasing response increases diversity.
It is great. I actually would go in and change names of anyone if they would say, “My name is John but they call me Jay.” I would go in and change it to Jay because I didn’t want to make the mistake myself. Voir dire was seamless because of the questionnaire we used. It was quick. Instead of giving 45 minutes or 50 minutes or an hour per side, they actually used 20 for one and 15 for the other. It was a very quick process because of how much information they had going in.
Did you have to use a breakout room for strikes or how did you handle that?
The breakout room system is pretty easy. Every day, we would create four. We had the plaintiff’s room, defendant’s room, chambers, and jury and that’s what we named them. I assigned each person each day. As soon as they came in, I assigned them to the room that they needed and all the jurors would pop in, be assigned, and go straight into the jury room. They always knew where to go. If I were in the room and they would say, “Judge, we need to approach the bench,” I would say, “Ladies and gentlemen of the jury, we’re going to have a conference outside of your presence but this is not a break. I don’t want you to leave your computer. I want you to move into the jury room and I’ll summon you back in a moment.” Now, this is another very important thing during the trial. You have to have someone who stays in the jury room.
My brilliant coordinator had two log-ins. She had an iPad log-in in the jury room. That way, if they had a technological problem with the iPad, she could do it and tell them how to fix it. She had her usual computer with the court recording device in the main courtroom because she’s never going to record in the jury room but she had them side by side with headphones. If she’s in the room and I send the jury out, she’s watching the jury over here and watching us over there. If I said, “We’re ready to bring in,” the jury bailiff will bring the jury in. She would hit the thumbs up on this side and she would mute that one, unmute the one in the jury room, and say, “The judge has called you and everyone move back to the main session,” and they would leave the breakout room.
Every time I took a recess, the whole room would clear, the jurors would go to one place, the plaintiffs in their group and the defendants in their group. It would be me, camera off, with the coordinator in the main room. They had that in 30 minutes, there was no more instruction. Everybody knew exactly what to do. For strikes, the new Zoom update is phenomenal because you can summon one person out of a breakout room. I would summon juror number eight and that person would pop into the room. I’d say, “We’ve got some questions for you about one of your answers regarding who you know.” I’d say, “I’m done with you. Go ahead and go back to the jury room.” They disappear. I would summon number 30, they would pop in. It was seamless and easy. We had people that were not tech-savvy and they knew exactly what to do. They might be the last person to leave but they would always know how to go and where, so it worked out great.
Hearing you explain it, it takes out a lot of the stuff that caused the problems in the trials. You don’t have to worry about a lot of the back and forth where things get mixed up and people get lost. Being able to control it from your standpoint and your coordinator’s standpoint eliminates a lot of the human error that may come up in some of those other instances.
Breaks are a lot shorter. We have one ladies’ room and one men’s room in these courthouses. Sometimes we have a restroom break. I’d say, “We’re going to take a break. You all go use the restroom and get a cup of coffee.” Fourteen people line up at the restroom. You’re looking at a minimum 15, 20 minutes for them to do what they need to do, get some coffee, make a quick phone call. In this trial, I would say, “Five-minute recess,” and everyone would scatter and everyone would come back, they’d have their coffee and they’d be refreshed and ready to go.
That made the trial move quickly. One-hour break for lunch. Normally, we have to do 1.5 hours at least because that’s how long it takes to get food in a small town. There are two restaurants and everyone goes to them. Now, I would say at the 10:00 break, “I’m going to give you fifteen minutes, make a sandwich, have it ready. We’re going to break the 30 minutes for lunch so we don’t fall behind,” and they were thrilled, happy and comfortable.
I have to ask a pointed question. Given how smoothly that went, why would you ever go back to the way that it used to be? I’m not speaking specifically about the trial part, the presentation of evidence, and witness testimony. I’m speaking specifically on voir dire and jury selection, the veneer coming in strikes that whole process. It seems like you cut down on the number of people in the courtroom and all the hustle and bustle. If you can get the lawyers over the hump of expecting that this is an efficient way to do it and get them through that mental barrier of, “I can’t read somebody on the computer screen,” or there’s so much personal exchange that happens. That’s all certainly true, but is there a good case to be made, Judge, for continuing to handle voir dire remotely even if everything goes back to the way it was?
Yes and no. It’s case-by-case. Let’s address one thing you said and then don’t let me forget the first part of the question. The jurors, after this trial, told me that they are better able to read and judge witnesses this way than in person. In these cavernous courtrooms, they’re looking at the profile of the witnesses. They talk to the lawyer and they can literally be 24, 25 feet away, the furthest juror seat. They all told me that they loved this because right now I have Jody blown up on my screen. I pinned your image. I have a large screen. It’s 38 or 37, whatever it is. I can lean in and I can see freckles. I can see every wrinkle, not that you have many as a young man, but I can see everything you do.
If I were grilling you, I would see every twitch, every glance, and the jury told me that they thought it was so much easier for them to read people. That’s true in voir dire if you can pin someone quickly. If you’re doing a big group and you’re looking for nods, it might be a little tougher like it is in the courtroom when they’re spread out over 60, 70 feet away. In this system, if you are good with the technology at pinning and unpinning, expanding and not expanding, then I believe and it seems to be something that they agree with, that it can be superior. It’s a better way to read people than in the big courtroom.
If you have a panel of 100, which I have had to do. I had a panel of 204 one time because it was a murder in a small town. Everyone in town knew something. It’s a town of 1,000 people and we have murders every ten years, and so everyone knows something. I summoned the maximum number of them. There were 204 seats in the courthouse and that’s how many people I had. Two stories. It was very To Kill a Mockingbird. We have an upper deck and all the people were there. It was great and wonderful. You can’t do that in Zoom because the most you can have is twenty people at a time, plus lawyers and judges. Twenty-five is your max. They scroll off the screen otherwise. If I’m going to call 100 people, you’re going to have to do voir dire five times and that’s not pleasant to do the same question of the panel five separate times. That doesn’t work. Unless there’s some dramatic change in the technology and the software, it’s not going to work. You have to have smaller groups.
My plan was to do two groups of twenty, but I could see how you might have to do three. A normal in-person jury goal is 74 people. I’ve never failed to seat a jury. If I have 74 people, 100% of the time I’ve seated a jury. I’ve never had a failure. I know that if I have 3.5 groups of 20, I don’t care what your case is, I’m going to sit in a jury. My goal is never to waste time. That’s not going to work for those big cases in Zoom and it won’t work and can’t work unless they change the program. We don’t have enough data on outcomes to say definitively there’s no difference.
If you want to do this, I would love it and I’ll help you do it. What we need to do is a couple of mock jury trials, 2 or 3 at least, that are tried twice. Same people, same trial, no cheating, no learning, no improving. You try it one time in person. You try it one time by Zoom or you try it once and do it both ways hybrid. It would be tough but you can do it. Compare the results and do it multiple times. Let’s see, do people tend to favor the defense more one way than the other? Do damages seem to be less or higher one way or the other? Is it harder to prove mental anguish on the screen than it is in person? We don’t know that yet.
What we need is some groups to study that, to do some studies with mock trials because it wouldn’t take many to get phenomenal data. If you carefully prepare your charge and your issues on some of those cases, do some criminal trials, let’s see whether statistically it’s the same or at least a negligible margin of error difference, I’ll tell you definitively yes or no. For now, I’m not going to jump to any conclusions and declare based on some closely held belief that it’s the same. That’s foolish to do.
Now that we have experienced their immense advantages, virtual proceedings are here to stay, at least in certain kinds of cases.
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For our law professors who happen to be reading out there, Judge Ferguson has thrown down a challenge and also given you a means to do it. Reach out. Here’s your next leg of your article.
Given the efficiencies that come into this, your situation is unique because of how spread out your jurisdiction is. Even a district judge, let’s use Judge Crump as an example, I’ll pick on her as a fellow St. Mary’s grad. She’s tried a case with twelve jurors and I know there’ve been difficult challenges to that. I wonder, if I asked her, what she might say is that it would still be a big efficiency gain to handle obviously pre-trial. Obviously, things that can be things that you all are handling remotely as a matter of routine now those sorts of level of activities. If there were no statistical differences or if everyone could get over the hump of getting through the things that ordinarily take a lot of time.
Voir dire is a big one to use this tool on an ongoing basis. It seems like so much more could be done so much more efficiently and Judge Ferguson wouldn’t be driving 2.5 hours one way to get to a courthouse for jury selection, which I would think, to me, there’s so many obvious efficiencies to be gained from it. It’s understandable that not everybody wants to dive right in. It’s taken some time to get to this point. I hope David Slayton is taking notes and reading. I’m sure you’ve had David’s ear throughout this process, Judge.
I’ve been lucky to work with David since March 6, 2020. It was the first time we connected about the situation even before the pandemic was officially declared and we were already working on this. I remember that we, being the judges, we take these jobs knowing what they entail. I took this job knowing I would drive four hours a day. I’ve never begrudged it. That’s the job I took. If I didn’t want to do that, I would have taken another job or moved and done something else. We are seeing some significant differences for the people we serve. The jury response is greater when you’re doing a virtual proceeding than it is in person. I know in Meyer that’s because people don’t want to drive two hours each way. They don’t want to get up at 5:00 AM to be at the courthouse at 8:30 when it’s from Presidio to Marfa or from Terlingua to Alpine, which is 1.5 hours, or from Del City to Sierra Blanca, which seems like forever twice a day.
I reached out to some of my friends in the city in Harris County and I said, “How do you feel about going to the courthouse?” I’ve gotten an earful from people who live in the city saying, “The reason I live where I live in the city is so I don’t ever have to go downtown. When I get summoned for jury duty, I’ve got to get up at 4:00 AM, drive through two hours of traffic, and I hate traffic, and then try to park and then I’m around all these people and it’s such a nightmare and I’m stressed out. I have to come back the next day.” They hate it. They do anything they can to get out of jury service. We are seeing when we poll and interview people, they enjoy this service.
I asked all six of the jurors I had. They all said, “I enjoyed the service. I’m glad I was selected. I was comfortable.” They were all happy to have been chosen for the jury. Think about that for a minute. We are increasing response, which increases diversity. The more people you get, the more of a diverse panel you’re going to have. Rather than a panel that is predominantly one race or one age or one gender, more people connect because they enjoy the digital interaction. They live on their phones. The kids, the younger generation, everything they do is on their phones. They talk to each other when they live in the same dorm. They FaceTime rather than walk down the halls to see their friends. My daughter is in college. I know this for a fact.
We’re getting more people, the jurors like it better, they’re safer. They don’t have to take as much time off. If they have young children, they don’t have to leave their homes empty. It is better for them. I feel like that’s better for our system if more people interact. Circling back to Twitter, we’ve seen that the public level of understanding of the justice system and civics and our government is not as good as maybe we all assumed it was. One way that we can teach people is by getting them actively involved. If you read somewhere that trials are fake and jurors don’t care and don’t take it seriously, someone who’s never been on a jury might believe that.
Someone who has been on a jury and worked hard and paid attention and anguished over the decision, they know the truth. They’ve been there. The more people we get involved in the system, the greater the level of public understanding of our government and of our justice system, the greater the comfort level we have. It’s also a side note, but it’s so much better for child welfare cases and CPS cases. We have so much greater involvement. We can see the children more often if we don’t have to pull them out of school and drive them into the courthouse.
We have fathers in CPS cases participating where we would never have had that before. An alleged father who lives in Washington and didn’t know that he had a child and now they log in and they watch the hearings. I’m telling you historically, that was rare. We have better results for children in those cases. We have greater participation by parents. It has been a revolutionary change for CPS cases to be able to use these virtual hearings. I don’t think we’ll ever go back. We will always make sure, at least in certain kinds of cases, that this option is available.
That was going to be one of our questions for you. Particularly in your district, in the uniqueness of it, do you see yourself incorporating these proceedings a lot more going forward in all different types of cases where it’s appropriate?
I hope so. The first step is the Supreme Court has to keep issuing these emergency orders over and over, letting us do it. When the governor’s emergency declaration ends, disaster declaration ends, which could be years, but you never know. There’s a lot of political factors that go into that. I don’t know, none of us knows what’s coming next. When that ends, the legislature has to have acted because as you know, the rules don’t allow us to do this in every setting every day. It took a pandemic and a declaration of disaster for us to even have this ability. The legislature has to step up and they have to listen to the input they’re getting and they have to make this possible for us going forward. I believe that will happen because it’s the right thing.
I hate to sound naïve, but I still believe that people want to do what’s best. They work hard. They take these elected positions because they want to do the right thing and help people. I’m convinced that our state legislators and representatives are going to do the right thing, pay close attention, and create the committees they need to create. They will listen to the advice and the data that we get from OCA and David Slayton and judges and lawyers and then craft the law so that we leap forward. This is almost a 100-year leap forward. We had eFiling and that was a huge change but look how long it took us to get the ability to do service online. I have found lots of people through Facebook and there was no other way to find them.
It took us this long to incorporate that level of technology. We’re ready. We are getting a practice run statewide. What was the latest number? Was it one million virtual hearings in Texas? I know it was over 770,000 the last time I looked. After one million dry runs, we’ve learned a lot. You can learn a lot from one million flips of a coin. We’re ready to incorporate this going forward. I think they will. I will certainly advocate for some form to continue. It’s too good for the people we serve not to use it. It hurts them to take it away. It doesn’t hurt me.
Your point about the legislature is a great one. I’m certainly hoping that some folks who have a say in what goes on over there at the Capitol building will hear this or hear about it. We could stand to be reminded that that’s what it’s going to take. The Supreme Court can keep doing what it’s doing for a while but we’re entering soon a legislative session year and bills are being looked at and will be filed. What we all know for sure is it’s not going away. It’s not going to disappear. We only have a biennial legislature. This would be a good opportunity for that body to take action, it seems to me.
Virtual Jury Trial: The justice system is ready to incorporate virtual proceedings moving forward. It’s too good for the people we serve not to use it.
We have gone far longer than we generally go, Judge. I’ll tell you, it’s been a pleasure to hear about your experience. The way that this all happened it seems to me is because you and your coordinator, Lori, have been incredibly organized setting up this website. Your technological savviness has helped to make this happen. There are lessons for projects across the state to learn from this. Incidentally, I did see in the Statesman that Williamson County is going to start resuming in-person proceedings supposedly in January 2021 using software called Jury Manager that comes from Tyler Technologies. It’ll be interesting to track that as well, but your system seems like it gets the job done.
The Supreme Court issued the new emergency order and the Office of Court Administration updated its guidance to courts. A lot of courts that thought they were going back in person will not be as a result of the issued guidance. I know a lot of people that have pandemic fatigue and we’re tired of changing the way we live and feeling the way we do but the numbers, when it comes to court, don’t support the rush back. I was busy fielding calls from judges who are now not able to have their in-person proceedings that they’ve scheduled throughout January 2021. They’re all scrambling trying to figure out, “What are we going to do? What if we have summonses that have gone out for grand jury? What about these cases we’ve set for a final hearing in criminal matters in person?”
Right now, it’s a little up in the air but we’ll get through it. I have to say, I hate to disagree, but I’m not going to take credit for any of this that what has made this possible has been the willingness of the legal profession to embrace this change. Think about lawyers who’ve been doing the same thing like we have for many years and overnight, with seven days warning, the Supreme Court shut down their entire skillset. We turned around and said, “If you want, you can practice in a completely different way starting now.”
That’s terrifying. A lot of people could easily have said, “I’m out.” A lot of judges could have said, “I’m not going to learn this stuff. I don’t like to carry a cell phone.” The profession embraced the technology and the change and the need to continue to serve our communities in spite of the fact that we were going to have to expand our skillset dramatically. It’s very kind of you to say that any one of us was responsible but the fact is we’re not. You all are the ones who are responsible for the change. We’ve tried to shepherd it along as best we could and make it produce as high-quality justice as we can. You all deserve the credit, not any of us.
We can agree to disagree on at least sharing it with you. We do thank you so much for being here. This has been interesting and such great stuff. It’s such a neat way to think about the practice of law going forward. Hopefully, there’ll be a way to incorporate this even beyond the end of the disaster declaration and the pandemic.
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About Judge Roy Ferguson
Judge of the 394th Judicial District of Texas, including Brewster, Culberson, Hudspeth, Jeff Davis, and Presidio Counties.
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