Mark Twain once said: “Trial by jury is the palladium of our liberties. I do not know what a palladium is, but I am sure it is a good thing!” If Mr. Twain were alive today, he wouldn’t be quite so sure that jury trials conducted during the COVID-19 pandemic are really such a good thing.

Recent news reports suggest that a vaccine may not be available until next spring at the earliest, and it may take months before that vaccine can be widely distributed. But the demands of justice do not rest, and courts—already overburdened with growing dockets before the pandemic—are struggling to reconcile the need for jury trials with the demands of social distancing. As a result, courts around the country have become laboratories, experimenting to find the right combination of remote video conferencing and traditional in-person proceedings while testing long-held assumptions about jury social dynamics, the right to confront witnesses, and due process.

Some courts are trying to press ahead with traditional, in-person jury trials, but are being thwarted by the pandemic. In West Virginia, for example, drug distributors are seeking to delay a bellwether opioid MDL trial, calling it a potential “super-spreader” event in the making. This follows an Ohio federal court indefinitely delaying another opioid MDL trial that was set to begin on November 9th because of COVID-19 concerns.

Other courts have fully embraced virtual trials. In August, a Texas court held a full jury trial via Zoom video conference. Jurors who did not have access to a video-enabled computer were loaned iPads so they could participate in the trial. In Arizona, hundreds of indictments have been handed down by grand juries that convene, not in a courtroom, but over video conference.

Between these extremes, New Jersey is trying a “hybrid” approach to jury selection and trials. Under this approach, potential jurors are first pre-screened for their ability to participate in the virtual selection process, and attend trial in person. Jurors who are older than 65, or have an underlying medical condition (such as kidney disease, COPD, organ transplant, obesity, certain heart conditions, sickle cell disease, or type 2 diabetes) are excused and rescheduled for a future date. Final jury selection and trial are then conducted in person at the courthouse. Limited observers are permitted to assemble in a separate space in the courthouse and observe the proceedings via video feed. This “hybrid” approach recognizes the importance of in-person interaction at trial, where a juror is expected to read a witness’s expressions and body language when evaluating credibility, just as an attorney needs to see the faces of jurors who make up the attorney’s audience.

This sounds great in concept, but it’s not working too well so far. New Jersey’s bellwether “hybrid” trial—a criminal case captioned State v. Wildermar Dangcil—has ground to a halt after the defense challenged the constitutionality of the court’s new jury selection procedures. The defendant contends that pre-screening for the ability of potential jurors to participate in virtual selection “resulted in the elimination of roughly 75% of the jury pool, leaving a substantially smaller than anticipated array.” The defendant also contends that pre-screening of potential jurors produces a jury pool that is neither random, nor representative. To the contrary, the defendant contends, it skews toward jurors who are younger, healthy, and who have a level of wealth and sophistication that enables them to participate in jury selection by virtual means. The trial judge rejected these arguments and denied the defendant’s motion for a stay, but the Appellate Division granted an interlocutory appeal. The appellate court is expected to issue a decision before the end of October.

The confusion over whether and how to proceed with jury trials does not bode well for complex commercial litigation for a number of reasons. The first concern is delay. Trials have essentially been on pause across the country since the lockdown began in mid-March. (The authors of this article, for example, had complex commercial trials scheduled for March and October of this year, and both have been indefinitely delayed.) Even if jury trials now were to resume with normal frequency, there would be a six-month backlog of cases. That backlog grows every day. And once jury trials fully resume, criminal cases will be given priority over civil cases because of public safety and Sixth Amendment “speedy trial” concerns. If a vaccine is not widely available until next spring or later, courts will likely be looking at years of backlog for commercial cases.

And certainly the backlog will affect settlement negotiations. As every judge and litigator knows, there is no better way to encourage settlement than holding the parties to a firm trial date. If the status of jury trials remains in doubt well in to 2021, litigants will have little incentive to take settlement negotiations seriously. Courts, on the other hand, will be more likely to order mediation (over the parties’ objections, if necessary) in the hope (probably vain) that they can clear their dockets.

Also, the resumption of trials virtually or through a “hybrid” approach may create strategic concerns. Our colleagues Theodora McCormick and Robert Lufrano already examined some of those strategic and practical issues here. Distinct issues will arise in hybrid trials. For example, how does a jury pool pre-screened to minimize the risks of COVID-19 impact the demographics of the jury ultimately selected? In the New Jersey bellwether “hybrid” trial, the appellate court will have to decide whether such a jury skews younger, better educated, and wealthier (as the defendant contends) and whether that creates a barrier to a fair trial. Even if such skewing of the jury pool does not rise to the level of a due process violation, future litigants will have to evaluate how such issues will impact jury selection and the unique demographic questions that every trial presents.

Finally, courtrooms are not laboratories (at least in the short run) because experimentation inevitably leads to appeals, appeals, and more appeals—as the New Jersey bellwether case has already shown. Even jury trial experiments that appear to be successful at first will likely result in appeals, and some of those appeals will result in reversals that start the process over from scratch. Instead of the “palladium of liberties” that Mark Twain talked about, some jury trial experiments may prove to be fool’s gold.