MoFo Perspectives: COVID-19’s Impact on Civil Jury Trials

In this latest MoFo Perspectives podcast, MoFo litigation partners Arturo González and Alexis Amezcua address some of the greatest challenges that lawyers, judges, and juries face as trials go virtual during the Coronavirus pandemic and the importance of keeping them moving forward.

Transcript

Speaker: Welcome to MoFo Perspectives, a podcast by Morrison & Foerster, where we share the perspectives of our clients, colleagues, subject matter experts, and lawyers.

Alexis Amezcua: Welcome to MoFo Perspectives. I’m your host, Alexis Amezcua, and in this episode, we will discuss the impact of COVID on civil jury trials. I’m pleased to be speaking today with Arturo González. Arturo is one of the nation’s top trial lawyers, and he’s had significant success representing both plaintiffs and defendants in state and federal court around the country. He’s a fellow with the American College of Trial Lawyers and a member with the American Board of Trial Advocates, also known as ABODA. Arturo, thanks for joining us today.

Arturo González: Great. Thank you.

Alexis Amezcua: Let’s start with the basics. Where does the right to a jury trial come from, and why is it important?

Arturo González: I do think this is important for people to understand because most people don’t. Just a very short bit of history. Most folks understand that there was a convention in Philadelphia more than 200 years ago to come up with our constitution, but there were actually two conventions. The first one they came up with the three branches of government, but at the second constitutional convention, they came up with the bill of rights, which I consider to be the most important document in our nation’s history. And a lot of folks understand some of the bill of rights: fourth amendment, unreasonable searches and seizures, freedom of the press is the first amendment, but the seventh amendment is the right to jury trial. I just read you one line: in suits at common law where the value and controversy shall exceed $20, the right of trial by jury shall be preserved. Since this country was founded, it’s been in our constitution, right on our bill of rights, that we have a right to resolve our disputes with the jury of our peers. And that’s why it’s so important that we preserve it.

Alexis Amezcua: As long as I’ve known about the right to a jury trial, it has always been that that jury trial would be in person. In fact, I’ve never even considered it another way. How has the COVID-19 pandemic impacted the right to a jury trial in general and with respect to your practice?

Arturo González: Well, you’re right. Just like people sometimes see on TV, jury trials have always been in person, and state court you normally have 12 jurors in the box, and federal court you normally would have eight. COVID has had a significant impact on the jury trial. It basically brought our court system to a halt, and you can understand why, right? I mentioned the 12 jurors because these are 12 people that’d be sitting right next to each other in a small box, and we can’t have that anymore. And so for many, many months, we had very little activity in our courtrooms, definitely no jury trials, and it’s impacted my practice. I had a jury trial in January in Delaware, and my three other 2020 trials were all kicked to 2021. It’s been very significant in just about every jurisdiction in the country.

Alexis Amezcua: What is, if you can generalize, what is the current status of jury trials? Are they still on hold in any courts? And if so, do you have any sense of when they’ll start up again?

Arturo González: It really is a mixed bag. I’ll give you one example and then others. Some trials were right in the middle of a jury trial when the pandemic hit and instructions were given that you can no longer come to court, and we had a trial and before Judge Donato, a federal court in San Francisco, that stopped in the middle because of COVID. And Judge Donato tried to restart the trial a couple of months later, which raised a lot of questions. Some people were concerned, the jurors even going to remember what they heard? It ended up being a moot issue because two of the jurors didn’t want to come back, and they just didn’t feel safe. And that’s the problem, right? We want to make sure that when we restart our civil jury trials, it’s done safely. And so what is the current status?

Arturo González: Well, it varies. We’ve had a few trials, civil jury trials, in California very recently. In fact, one verdict came in just yesterday. There was a jury trial verdict that came in yesterday, also, from the State of Washington. Slowly, courts are starting to experiment with civil jury trials, but slowly really is the operative word. Many courts, including the federal courts in Georgia, have decided they’re not going to have civil jury trials at all this year. If they experiment at all, it’s going to be with criminal trials because criminal defendants have precedent, especially if they’re in custody. It’s been a very slow process to reopen. In Pittsburgh next week, they’re going to try to pick a civil jury and they’re going to use their convention center—it’s a large hall—to try to spread the jurors out so you have social distancing. In the Western District of Texas, they’re going to have a federal patent jury trial this month. Slowly, we’re starting to see the courtrooms open up, but it’s being done on very much on an experimental basis, and many things are going to be different.

Alexis Amezcua: So we’re using convention centers. You talk about experimenting to try to restart some of these civil jury trials. What are some of the ways that you’ve seen jury trials change then as a result of the pandemic, I guess, for those that are actually proceeding?

Arturo González: I’ll tell you, it’s really quite incredible. The two trials that just came in, the two juries that just came in with verdicts within the last couple of days in Oakland and in the State of Washington were both remote trials. What does that mean? That means there was nobody in the courtroom. I mean, this really is unprecedented stuff. There was nobody in the courtroom. All of the jurors were at home watching the trial via Zoom. All of the witnesses were either at home or in their office testifying via Zoom. The lawyers, the same thing. Even the judge and the judge’s clerks were not in the courtroom. That is extraordinary, but that is how some of the courts are handling these matters. There are other courts that have actually brought jurors to the courtroom, but it’s a very different courtroom.

Arturo González: It’s courtrooms that now have glass all around the witnesses. You may have seen the vice presidential debate where they had the partitions, and we’re doing the same thing in the courtroom, around the witnesses, around the judge, the clerk, and around the lawyers. There are now these glass partitions. The jurors are separated. They’re no longer in the jury box, or at least not all of them. You put three or four in the jury box and the rest of them are out in the audience. And what that means is that you have very few spots, if any, for members of the public to watch the trial. In some cases, they’ve only been able to listen to the trial by calling in by telephone, and you can listen to the proceedings but not actually watch. We’ve also had to limit the number of lawyers that are in the courtroom simply because, again, we’re trying to social distance. Many trials by Zoom, others in court, but with a lot of precautions, including, of course, masks. And in some cases, you have to have both a mask and a shield, especially in those jurisdictions where the pandemic is hitting harder.

Alexis Amezcua: Boy, I imagine when you have a trial via Zoom, it’s ripe for error. You talked about trials happening via Zoom. Some in person. Working on Zoom, of course, is ripe for error. We accidentally see the inside of people’s bedrooms. I’ve done depositions remotely via Zoom where the witness loses their internet connection altogether. Have you heard or encountered yourself any unusual problems as a result of the changes to jury trials?

Arturo González: Unfortunately, the new era has not been without its problems. And I’ll give you just a few examples that we’ve encountered. We had a trial, a federal court trial in Georgia, where it was just a bench trial involving just a judge without a jury, but it was by Zoom, and the witnesses were testifying in their homes or offices. The lawyers were not in the courtroom, and what happened? The second day the hearing, because it was like a four-day preliminary hearing involving very important voting rights issues, and on the second day, all of a sudden, on the screen appeared a Nazi swastika, some pornography, and some Arabic writing. Nobody could figure out how to remove it from the screen or where it came from. It took about five minutes for the clerk to finally figure out how to take it down off of the screen.

Arturo González: From that point forward, only the clerk could control what was displayed, which was unfortunate because up to that point, the lawyers had the ability to put things up on the screen for people to see. But once we were Zoom bombed—is what they’re calling it—that was no longer the case. Another example that I give you came out of one of the trials in Oakland. There are some asbestos trials taking place in Oakland, three of them that involve elderly plaintiffs who have preference because they’re elderly. They get to go first, and they’re also in bad medical condition. And in one of the trials, the judge took a bit of a break to talk to the lawyers, but the jurors and the plaintiff himself remained on the screen. And somehow—I don’t know the details—they were able to talk to each other.

Arturo González: While the judge was talking to the lawyers, the plaintiff ended up talking to the jurors, which obviously you’re not supposed to do. Anybody who is familiar with jury trials, you’re not supposed to communicate with jurors in any way outside of the courtroom because we want to avoid the appearance of impropriety. Now, the conversation was about the background that some of the jurors had in Zoom. They had those virtual backgrounds, and the plaintiff was curious as to how they did that, and so they were explaining to the plaintiff how you can get a virtual background. Well, you can imagine what the defense lawyers thought about that once they learned about it, and there were a lot of concerns. Motion for a mistrial I believe was made that was denied. That trial ended recently, and the plaintiff was awarded over a million dollars by that jury.

Arturo González: I imagine it’s possible that could be an issue on appeal. Another issue that’s not quite as serious, but it is a fair point, is how attentive are the jurors when they’re sitting at home watching this trial? It’s apparent sometimes even in a real jury trial in the courtroom that some of the jurors at times will start to snooze off a little bit, but you can see that and try to react to it. Maybe take a break. What happens when they’re at home? I’ll give you just one example of the thing that concerns some lawyers. In one of these Zoom trials, there was a time—because you can see the jurors on the screen—there was a time when a cat jumped up on the lap of one of the jurors, and the juror spent some time petting the cat and playing with the cat!

Alexis Amezcua: Oh no!

Arturo González: I realize that may not sound as significant, but when you have a multimillion-dollar trial, you’d like to believe that you’ve got the attention of the jurors, so those are things that I think we need to work on. And then, of course, technology. There’s always going to be technology issues, and there have been such issues in some of these trials, like maybe one of the juror’s internet connection goes down temporarily, maybe too many people in that person’s house are using the internet. And when that happens, you have to stop the entire trial and wait until you get that juror back. Those things are frustrating, but those are things that we’re working through.

Alexis Amezcua: For the lawyers that do find themselves conducting a jury trial remotely, this is all together new territory. We got Zoom bombings. We have lost internet connections, cats on laps, not to mention in law school, you’re certainly not trained to cross-examine a witness through Zoom or let alone give an opening or closing statement. What advice do you have for lawyers who find themselves conducting a jury trial remotely?

Arturo González: We need to help the judge. You’ve got to understand that for most judges, this is new for them, just like it is for us. I have three documents that I think are important for any lawyer to read if you’re going to try a case in this environment, a jury trial. The first was put out by the American College of Trial Lawyers. They put out interim guidelines for trying a case in the COVID environment. The second was put out by ABOTA, the American Board of Trial Advocates. They put out a white paper on COVID trials, and you can get those documents on their websites. The third document was put out by the Association of Business Trial Lawyers, Northern California Chapter. They got together with the judges in the Silicon Valley, the presiding judges, and they put together a template for a pre-trial order that judges can use for trying cases in this environment.

Arturo González: And that template, I think, would be very helpful for any judge to review. That’s how you help the judge. Now, how do you help yourself? There are two main suggestions that I would make other than what’s already covered in the guidelines. One is you really have to narrow the list of trial exhibits that you’re going to use. Frequently, lawyers, especially at big firms, will throw almost any document onto an exhibit list because they’re afraid if it’s not on there, they won’t be able to use it at trial, and that is in fact true in federal court, unless it’s for impeachment. That leads to too many exhibits. That is a very complicating factor in a remote trial. You want to try to narrow your exhibit list, keep it real, and hopefully get rulings from the court on objections before the trial begins. The last thing I’ll note is the technology has to work.

Arturo González: You’ve got to check and double check and triple check your technology, especially if you’re got to have remote witnesses. Where is your witness going to be? How good is her internet connection? Are there any distractions in the home? If so, perhaps the witness should be in some office and not in a home. You just want to think about these things in advance because you want to make sure that when your witness is testifying, wherever he or she is, they’ve got to be completely focused on the trial and not be distracted by anything that might be going on in their environment.

Alexis Amezcua: We’ve been talking about trials and doing those remotely in light of COVID-19. What impact has this brave new world, if you will, had with respect to settlements in civil disputes?

Arturo González: It’s so interesting because many plaintiffs are feeling pressure to accept lower settlements, and the reason for that is if they don’t accept a settlement, they’re going to have to wait who knows how long to get their day in court. So there is now something that some lawyers are calling the COVID discount, and that is if you want to settle, here’s what we’ll offer. Otherwise, good luck waiting for your jury trial. Defendants do, I think, have a bit of an advantage in this COVID era, but there is a cautionary tale there that if the defendant expects too much of a discount, the good plaintiff lawyers are willing to hold on and hang in there. The good plaintiff lawyers are not going to give away a case just because we’re in the COVID area. People have to be aware of the fact that plaintiffs are feeling the stress, but not put too much of a value on that.

Alexis Amezcua: So, similar to my prior question about tips for lawyers that find themselves conducting a jury trial remotely, what advice do you have for lawyers who find themselves in settlement conferences or mediations remotely?

Arturo González: I actually have had two settlement conferences via Zoom, and I was very surprised at how well they worked. Both of the cases ended up settling, and the judges were very good with the technology, which impressed me quite a bit. They were able to separate us into separate rooms and jump in from one room to the other. Here are a couple of things that I can suggest to people that they be aware of. Number one, if you are not talking to the judge, then you need to make sure that you are on mute. What has happened a couple of times in my settlement conferences is that either A, the judge will suddenly appear on our screen while I’m talking to my clients, or B, the judge brings in the other lawyers and we hear them talking to their clients when they join because they apparently didn’t know that they were joining and that we would be on the screen with them.

Arturo González: It’s very important when you’re not talking to the judge to make sure that you’re on mute because the last thing you need is for your opposing counsel to be hearing you talk to your clients, or even for the judge to be hearing you talk to your clients about things that you think are private and confidential. So that mute button is just critical in settlement discussions. And the other thing I’d suggest is very important that people take these things serious because the settlement conferences, again, that I attended, have worked out quite well, and the judges in both of those cases told me that that was consistent with their other experience. So these Zoom settlement conferences are real. Come in prepared, come in with reasonable numbers, and you might be able to resolve your dispute.

Alexis Amezcua: You talked about a few of your trials being rescheduled to 2021. Do you think we’ll be back to normal with respect to jury trials in 2021?

Arturo González: It’s so hard to know. It’s going to be very much a jurisdiction-by-jurisdiction decision. As you know, the COVID is hitting different communities harder than others, and there’s a lot of concern about what’s going to happen once flu season hits us. And then there are a lot of open questions about vaccines. Are we going to have one, and if so, how soon? My personal view is that we got to get used to the Zoom thing and we’ve got to get good at it because I think it’s going to be with us for a while. I don’t think we’re going to have regular civil jury trials on a normal schedule until probably a year from now, maybe late 2021, because I think courts are going to continue to want to play it safe. They’re going to want to continue to try to make sure that we’re protecting our jurors.

Arturo González: And I just don’t think they’re going to be comfortable, and I don’t think jurors are going to be comfortable coming back too soon. I’ll give you one other practical example. Some of our most reliable jurors, jurors who are more likely than not to actually show up and not ignore their jury summons, are the elderly, and that is in part because many of them are retired and so they have time to come in. They don’t have to worry about conflicts at work. They no longer have small children that they need to take care of, and so they come in, but they’re among the most vulnerable when it comes to COVID. And so we want to make sure that we protect all of our jurors, and we want to make sure that when people do come back, when we open up, that you actually get a jury that reflects the cross section of your community, as they’re supposed to. And we don’t want to have juries that all of a sudden now exclude elderly and perhaps other communities who have been hit harder by COVID, including communities of color.

Alexis Amezcua: In your opinion, will any of the changes that you’ve discussed today as a result of COVID, would any of those changes be permanent for civil jury trials going forward?

Arturo González: I do think that some of the things that we’ve experienced are going to be permanent, and I’ll give you a couple of examples. I had an oral argument in federal court by Zoom. I wasn’t sure how that would go. And actually went extremely well. Not only did we win the argument, but it just went well. There was very little, in terms of technology, glitches. A couple of times, one of the lawyers who was speaking forgot to unmute himself, but other than those little things, it went quite well. And, in our profession, especially if you’re in a big firm, many times you have to travel to another state just to stand up and make a 10-minute argument in court. And I think that many lawyers, many clients, and many courts are going to find that it’s far more practical and efficient to do arguments by Zoom.

Arturo González: Even our U.S. Supreme Court, they’re not using Zoom, but the oral arguments in the U.S. Supreme Court are being done by telephone conference, and you can listen to them, by the way, the public can listen to them. In fact, I was listening to one yesterday. Fascinating arguments, and it’s worked out very well. The only thing that you lose is the interaction between the justices because they give each other two minutes to ask questions, and they take turns, and so you do not have that interaction between them and that’s unfortunate, but other than that, it’s worked very well. And even the Canadian Supreme Court is having remote arguments. They are using Zoom. And so I think that Zoom is going to be with us for quite a while for hearings and maybe even for jury selection, because why require all these jurors to come into court?

Arturo González: If one or two of the jurors are simply going to tell you that they’re going to have surgery the next week and so I can’t sit for a three week trial. Why force them to come into court? What some courts are doing now that works well is they’re sending out questionnaires for these jurors to get information, and based on that information, you can resolve a lot of hardship issues. If there are jurors who cannot serve for whatever reason, we can perhaps save them the hassle of coming to court, and again, limiting the traffic in court. Those types of things, I think, will be permanent. And then I think the technology’s going to get better, right? You’re no longer, I think, given that experience that I talked about, going to be leaving jurors in a situation where they can talk to each other or talk to the parties. I think you’re going to have virtual waiting rooms where you’re going to put these jurors, much like we do with settlement conferences. And so many of the changes that are happening I think are going to be permanent, but I’m cautiously optimistic that by late next year, we’ll be able to get back into court and pick our juries just like we used to, but at least for the next six to 10 months, maybe longer, we do got to get better at the Zoom thing because it’s going to stay with us for a while.

Alexis Amezcua: Well, thank you Arturo, for sharing your thoughts and your perspectives, especially given the experience that you’ve had. This is the end of our MoFo perspectives episode on the impact of COVID on civil jury trials. Once again, I am your host, Alexis Amezcua, speaking with Arturo González.

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