Judge Says Socially Distanced Trial Was 'A Thing Of Beauty'

By Daniel Siegal
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Law360 (August 3, 2020, 9:39 PM EDT) -- Northern California state Judge Samuel McAdam has a glowing review of his experience last month bringing jurors back after a monthslong break to resume a personal injury trial, in his Sacramento-area court's first civil jury action since the start of the coronavirus pandemic.

Judge Samuel McAdam

The Yolo County Superior Court judge spoke with Law360 last week about how jurors handled social distancing with a sense of seriousness, why he prefers witnesses to wear face shields instead of masks, and what worries him about fully resuming civil jury trials this fall.

Yolo County is currently holding only criminal trials, but last month made an exception for the personal injury trial before Judge McAdam, a former Seyfarth Shaw LLP labor and employment attorney who was appointed to the bench in 2008. That trial had started March 2 before pausing for the pandemic. A slightly reduced jury — two members opted out of returning — awarded $7.9 million July 6 to a truck driver whose leg was amputated following an accident.

Judge McAdam said that after this experience, he has no reservations about the safety and efficacy of trying cases in-person while maintaining social distancing and other safety measures, even if he worries whether enough jurors will show up.

The judge also discussed why he thinks there may not be any universal best practices for courts trying to resume trials; why he'd still prefer to try a case in-person rather than via Zoom; and why it's crucial to make sure jurors in socially distanced courtrooms all get a chance to sit close to the action — and on comfy seats.

This interview has been edited for length and clarity.

How did jurors react when you told them you'd be resuming the trial?

The jurors were very committed to the important work. We social-distanced, we all wore face coverings and we had extra sanitizing measures like wiping down the witness stand and wiping down the attorney desks and the podium. And minimizing the transfer of any paperwork.

Did the trial resume in your usual courtroom?

We did the jury trial in the courtroom. And the twist was we did jury deliberations in the courtroom as well. We locked the doors for the jury and we turned off the security cameras.

How did you keep in touch with jurors while the trial was paused?

I spoke with the jury twice before we resumed the trial. And we did it by Zoom for Court. I just checked on them and asked them whether they had followed the rules and admonishment not to discuss the case or form any opinions or do any research, and they all confirmed yes. Then I asked them whether they had any safety concerns about returning and COVID-19. And all but [two] said, "We're ready to go."

One had a COVID-19 concern, just because she was a senior citizen, and then I had a person that had an independent reason for not coming back.

With jurors over 65, here's my position: They have both a right and a duty to serve. So if they want to serve, then they can come in and serve. And if they don't want to serve, I'm going to excuse them.

How did you decide on the appropriate safety measures?

The very first thing is that we rely on the state public health officials and the local public health officials. And of course now we all know, you're going to do six-foot social distancing. And we were actually ahead of local officials on face coverings, but I could see that was happening in other places, so here at the courthouse in Yolo we did face coverings almost right away; it just seemed obvious to me.

Then you come up with practical ways to achieve that in the courthouse. An example is, we have big elevators and we limit two people to an elevator ride. We tape off seats in the jury assembly room: We normally get 250 people in there and now only get 55. We put numbers on the seats in the courtroom that are all 6 feet apart. We put up plexiglass in places in the courtroom, in the jury box and around some of the clerk stations.

What was the level of coronavirus cases in Yolo County when you decided to resume the trial?

Yolo County is about 220,000 people and I think we have had 30 deaths, but two-thirds of our deaths have been isolated in the senior care homes. So that's very serious, but we haven't had it in our general populace like some other counties in the state.

We never closed our courthouse. And the view we wanted to send to our community is, if you need the courthouse to decide a case, we are here.

For seven weeks it was urgent cases only, but we were open through Zoom and teleconference. And after seven weeks, everything was open except jury trials, and then it was another four or five weeks until we were doing jury trials. And now we're doing everything — everything in the courthouse is going forward.

I think it's a philosophical approach that we just believe really earnestly that justice should remain open in our county and that it can be done safely.

We were watching what was going on out in the community, and you have to go to the grocery store, right? You wear a mask and social distance and get it done. It's no different here in the court. We figured if you could go grocery shopping, you could administer justice.

You mentioned using Zoom to keep in touch with jurors. Did you ever consider trying to finish the trial that way?

The priority here is for criminal trials, and no I would never do a criminal trial through Zoom. I think a criminal defendant has the right to be present in the courtroom with the jurors. I would not compromise that under any circumstances.

As for a civil trial, if the parties agreed to it, yes. But you know, I don't really think that's the solution. Jurors sitting at home, even good faith, hardworking jurors, there's so many distractions and it's hard to keep everybody focused.

Was there anything you learned from this trial?

I support face shields in the courtroom. And that's a distinction from the cloth face masks. I think it's important in a court proceeding that you see people's faces.

Everyone wore face shields: The lawyers wore face shields, I wore a face shield, so the jury can see my face hear me more clearly, and same with the lawyers.

And certainly, in a criminal trial, we would want the criminal defendant, who's presumed innocent, to sit in the courtroom with the face shield and not a face covering. I feel very strongly about that.

Because you think it might color the jury's perception to see them in a face mask?

I think so, yeah.

As for witnesses, why is it so important to see their facial expressions?

For a percipient witness, someone who witnessed a crime or was there in the workplace and saw an accident, you want to see that person's face and really feel the testimony so you can assess their credibility.

What were the most challenging aspects of the trial? Anything you learned for the next one?

I changed the seating for the jurors every day, and they liked that. I advised my colleagues in the other trial departments they should do that. It sounds like a small thing, but juror comfort actually turns out to be very important in maintaining their interest in the case and their alertness.

If you stick them in the back of the courtroom, farther away from the action, on a hard bench, while other jurors are sitting in the comfort of the jury box closer to the witness on softer seating, I think over the length of a trial that can be a problem.

In terms of challenges ... people really rose to the occasion: The lawyers knew that they only had a certain amount of time, they were very organized, they asked very direct questions on the spot.

One of the things that sticks with me is the jury had a real sense of purpose. They issued a verdict, but it wasn't unanimous. There was real dialogue, there was real debate. They took several days, they worked really hard and in great detail went through the plaintiff's arguments and the defendant's arguments, in a personal injury case where significant damages were being asked.

Everyone was paying attention and nobody complained about safety, they just abided by the basic rules that we had.

The jury system, when it works, it's a thing of beauty. It doesn't always work, but when it does, it's an absolute thing of beauty.

Did you communicate with other courts and judges about how to develop best practices for this situation?

I know that there was a task force that the Judicial Council [of California] put together, and they put out a report that had some guidelines. That came out in June, and I read that. But since then we haven't really traded a lot of best practices. Partly because we're really, really busy.

Also, I just think that ... you have so many voices already within your court to talk to that are familiar with your own community. I don't know that it's all that helpful for other counties to hear what we're doing because they have their own situations and their own resources.

An example of that is, we have a modern courthouse, we have a jury assembly room we can tape off seats in. But some of the courts don't have a modern building and so they have to go outside to do their jury selection in a safe way where you can social distance.

You said this experience was quite successful. Do you feel comfortable going forward and trying cases with these measures for an extended period of time?

Yes. We're going to start civil jury trials Oct. 19 in Yolo. And the only reason we're waiting until Oct. 19 is we had expected a backlog of criminal cases ... so we're trying to get those cases through the system first. But I don't see any problem with extended civil trials or extended criminal trials in the courthouse.

The problem is, people's lives have been disrupted, and how many citizens are going to claim hardship, and are we going to get enough jurors in to move cases forward?

And that's a moving target, because people have health care issues that they didn't know about before, they've got loved ones who've gotten coronavirus or have gotten it themselves and need to quarantine. They're in professions that are essential workers themselves and this isn't the time for jury service, so there are tremendous stressors on the system for selecting jurors and getting sufficient jurors.

--Additional reporting by Y. Peter Kang. Editing by Breda Lund.

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