Law360 (September 23, 2020, 4:48 PM EDT) --
In the aftermath of the trial, the specifics of which we will not discuss as it is on appeal, we write to provide a practical and useful overview of coronavirus-specific tips and considerations for attorneys and parties who may — like we did — find themselves donning masks and conducting a civil jury trial under quite unfamiliar circumstances. Indeed, as courtrooms across the country begin to open and test the waters, it's becoming apparent that trials for the foreseeable future will bear little resemblance to those of the not-so-distant past.
Our law firm office closed March 16 and remained closed leading up to trial. Accordingly, nearly all aspects of pretrial preparation were conducted from the trial team's respective home offices. Surprisingly, working remotely had little to no impact on productivity or effectiveness leading up to trial. Trial team communications were conducted mostly be telephone, which — though not ideal — worked quite well.
Witness preparation was conducted by videoconference, telephone and in person. Candidly, there's just no substitute for in-person witness preparation, especially for key witnesses, and in-person trial preparation was conducted with those key witnesses close to the trial.
But for more ancillary witnesses, preparation by videoconference is a reasonable and acceptable substitute. The witnesses are still able to view the exhibits, and counsel is still able to observe and provide feedback on the witnesses' nonverbal communication and cues — albeit not as well.
Despite the workarounds for trial team communications and witness preparation, we still needed all the usual trial materials — exhibit binders, demonstrative exhibits, witness binders, deposition transcripts, as well as equipment such as a printer, easel and whiteboard. Accordingly, even greater advance planning, teamwork and reliance on and coordination with support staff were required.
Strong advance planning and a superlative support staff allowed us to have everything printed and prepared, gathered, and staged in the office without the trial team needing to be present in the building.
Venire, Check-In and Voir Dire
The venire in this case consisted of 80 prospective jurors. Roughly half checked in, and of those who did not come, the vast majority contacted the court ahead of time and requested — and received — an exception.
Juror check-in and orientation were conducted at a nearby off-site location that was much larger than the courtroom and allowed for better social distancing. Once orientation was complete, a group of about 25 prospective jurors were walked to the courtroom for voir dire.
The rest remained at the off-site location and viewed voir dire by live video feed. The group of prospective jurors in the courtroom were seated at least one seat apart in the jury box as well as one-half of the gallery that the court had reserved for this purpose.
This live-feed procedure worked exceedingly well. It limited the number of prospective jurors in the courtroom while still allowing all prospective jurors to see and hear the questions and answers.
Because voir dire typically focuses predominantly on the first set of jurors in the jury box anyway, it made no real difference whether the balance of prospective jurors observed in the courtroom or remotely. In addition, because the off-site location was just across the street, there was minimal delay in bringing over the first group after orientation.
The court and court staff implemented several precautions to maximize safety throughout the trial. The court required everyone in the courtroom to wear masks, and court staff provided masks to those who did not have one. The only exceptions were for the testifying witness and the attorney examining the witness or giving oral argument. When a witness reached the witness box, he or she removed her mask for testimony.
Similarly, the court staff placed a podium in the center of the courtroom, approximately 10 feet from the witness, jury box and counsel tables. When the attorney questioned the witness or presented argument, he or she would do so at the podium. The attorney only removed the mask when at the podium.
Both the podium and the witness box were cleaned and sanitized between each witness or attorney. In addition, the jurors were spaced out with an empty seat between each of them and the tables for counsel and the parties were spaced to maximize the distance, as best as possible, from the gallery and jurors.
Both the trial team and the jurors felt that the precautions were reasonable and appropriate. In addition, given the polarity of the use of masks, the court avoided any conflict by requiring everyone to wear a mask, though optional masks would have the advantage of potentially identifying the more risk-averse, or at least skeptical, potential jurors.
Although the precautions are necessary and were done well in this case, there are some downsides.
Throughout the trial, it was difficult to read the juror's expressions and reactions. This was particularly noticeable, and more difficult, during voir dire. So it is critical now more than ever to get a dialogue going with all the prospective jurors because subtle nonverbal communication may be obscured.
This also made it difficult to gauge the juror's reactions to the evidence and case themes, so it may justify the time and expense to test the evidence and themes with a mock jury in cases that ordinarily would not call for it. Or, minimally, the evidence and themes should be tested informally with colleagues or nonlawyer acquaintances.
Presentation of Evidence
The most significant takeaway relates to presentation of the evidence. The juror feedback revealed that brevity is more important in the COVID-19 era than ever before. The jury noted that both sides proffered what was perceived to be unnecessary or superfluous evidence.
While it's always difficult to gauge the evidence that will strike the right chord with each juror, it was an important reminder to be cognizant and respectful of the jury's time. In particular:
- Video and audio clips should be cut to include only the pertinent portions, when feasible.
- Consider dispensing with witnesses who make only ancillary points, particularly if another witness can make the same point.
- Using technology to publish exhibits is much more seamless and efficient than hard-copy exhibits.
Again, jurors are rarely happy to sacrifice their time, money and other obligations to spend a week with strangers in a courtroom. That's especially the case where they could also be sacrificing their health or that of a loved one. So, the importance of brevity and efficiency cannot be underemphasized.
Courtrooms across the country are opening up and the wheels of justice in civil cases are starting to turn. So, although a jury trial in the COVID-19 era may feel strange and unfamiliar, it can still be done safely and smoothly.
Angela Kelver Hall is a partner and Jason M. Rauch is an associate at Faegre Drinker Biddle & Reath LLP.
Disclosure: The authors represented one of the defendants in the trial discussed here.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 E.g., Masks spark public judgment, ridicule among customers as businesses reopen, Dalvin Brown, USA Today, May 26, 2020 (https://www.usatoday.com/story/money/2020/05/26/coronavirus-should-wear-mask-differing-opinions-create-clashes/5228544002/) (last visited Aug. 18, 2020).
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