Penney and Associates Partner Kevin Elder recently finished trying a disputed liability personal injury case in Stanislaus County, California. This is not unusual for the highly experienced partner of Penney and Associates, but this case was unique as it was one of the first jury trials in that county where jurors had to be spread around the courtroom masked up while making sure that everyone in the courtroom practiced good social distancing. Stanislaus County was very strict in following the CDC guidelines when it came to COVID-19 rules and regulations. This historic and bizarre way of prosecuting a case was at best a little bit unorthodox. Click here.
Two very experienced veteran trial attorneys took their battle before a masked up socially distanced California jury. The experienced defense lawyer and the experienced former insurance company defense trial lawyer Kevin Elder from Penney and Associates had to navigate unorthodox court procedures to proceed with their trial. Mr. Elder’s co-counsel was associate Garrett Penney. Both lead trial lawyers were members of the American Board of Trial Advocates which is a prestigious organization where only the most experienced trial lawyers are allowed to become members. It is a national association of experienced trial lawyers and judges. This is important as having equally experienced lawyers made it so that no party had any advantage over the other with the change of court procedure.
SETTING UP IN COURT IS MUCH DIFFERENT
Normally, attorneys arrive a few days early to set up the courtroom, get the lay of the land so to speak, and figure out where everything is for that particular courtroom. With Governor Newsom still not completely opening the courts as of the date of this article, the California Courts have the latest news and information concerning the process and rules concerning court procedure and health safety for each county. Each county has their own rules and regulations listed on the state’s court website. There were several very significant changes to the way that the trial was conducted. The typical jury box was not used due to social distancing rules. There were only four jurors sitting in the jurors box that can hold up to 16. When choosing a jury, the court normally brings in a large number of people who all sit in the audience and wait to see if their name is called to come to the jury box and be questioned by the court and lawyers. Also, the lawyers generally give a very brief one- or two-minute overview of the case to the large audience of potential jurors. In this case there were no potential jurors stacked up sitting next to each other in the large gallery area behind the wood separated court room stage area. Instead, the court had the jurors sitting in other court rooms socially distanced and brought in between 14 and 16 potential jurors at a time into the courtroom where the judge and jurors would be asked questions (this is called voir dire) and be chosen or released by the court or attorneys. Meanwhile the other potential jurors were waiting in the other courtrooms. This made the process more time consuming as the attorneys and judge had to give instructions and give brief opening statements on three different occasions. Another procedural change is that normally attorneys are allowed to test computer equipment and set up the day before, but this was denied for many reasons including what must have been issues with contaminating the area around the court. Nothing was really explained but it was obvious that the rejection of the request to set up early was probably due to the pandemic rules. The attorneys improvised and set up and practiced with the technology between the jury selection sessions. An unusual way of doing things, but it worked out.
PICKING A JURY AND STARTING THE TRIAL BROUGHT ON CHALLENGES
As stated, instead of giving the normal “mini-opening” to the whole group, the attorneys would have to give multiple similar openings to 3 different sets of 16 potential jurors. An interesting thing is that the court representative previously went through the hardships for jurors and eliminated them prior to the attorneys seeing them or discussing the hardship issues in their courtroom. Having the jurors masked up during voir dire made it a little more difficult for all the attorneys to get a read on the jurors’ expressions when asked questions. At times gestures or body movements are studied to see if a potential juror’s expressions do not coincide with what they are saying. This is truly an art that experienced attorneys have studied and practiced.
Once the jury was empaneled the court had the jurors sit all throughout the courtroom. Four jurors were seated in the jury box socially distanced. The other jurors were sitting in the audience or gallery area behind the attorney’s table. Thus, it became difficult for the attorneys to see and talk directly to the jurors behind them. This was especially difficult when a witness was on the stand directly in front of the attorney. Because civil trials are open to the public the court had to live stream the trial on YouTube, more changes had to be implemented. If any attorney wanted to get up to walk around or personally show the judge or a witness an exhibit they would have to pick up and carry a portable microphone while talking with a mask on hoping that everyone, including the jurors spread throughout the courtroom, could hear. As an experienced lawyer I would think that it would be quite a challenge to look at all the jurors to determine if they are paying attention. Are the jurors sleeping, wide awake, look bored, looking down as if not lot listen? This would be difficult to read as the jurors were scattered throughout the courtroom. Sometimes when cross examining a witness the expression on the jurors faces might indicate that you have gone long enough or that their answer may not be forthright. This was not possible with the spacing of the jurors and the fact that they were all donning masks.
My understanding after talking to the Penney and Associates attorney’s is that there were some minor problems with the portable microphone. This was compounded by the judge, witness, and clerk having Plexiglas in front of them, which made it a little more difficult to hear them while having a mask on. Because of this, the judge would have to take off his mask so everyone could hear what he was saying.
Following the proper COVID-19 safety rules basically multiplied the number of tasks to perform to just have a witness testify. The fear by the attorneys was that individuals, including jurors, were not able to understand what was being said unless they really concentrated. The attorney’s task was to make sure that the jury heard them, the witnesses, and the judge. It was also awkward trying to pass the judge and the witness documents around the plexiglass. Fortunately, the one positive thing was that the witnesses were able to take off their masks during their testimony because the bailiff’s new job during COVID-19 was to completely clean and sanitize the witness stand area prior to the next witness taking the stand.
INTERVIEWS OF PLAINTIFF’S LAWYER KEVIN ELDER
Frederick Penney: Was this the first time you tried a case before a jury during the pandemic?
Kevin Elder: Yes.
Frederick Penney: Was this the first personal injury jury trial in that county during the pandemic?
Kevin Elder: To my knowledge, no. It is my understanding that there was one in December, but I know our case was one of only a few personal injury jury trials in Stanislaus County. I do know that this was the first personal injury jury trial that this judge handled during the pandemic.
Frederick Penney: What pre-trial preparations did you have to do that you would not normally have done because of the court pandemic rules or regulations?
Kevin Elder: Several things, the court had plexiglass around the witness box and around judge and clerk as well as markers throughout courtroom seats that showed where potential jurors were and were not allowed to sit. Almost all civil trials are public hearings, so the court prearranged for YouTube audio, so the lawyers had to carry a handheld microphone if you walked away from the table.
Frederick Penney: What was the most interesting and difficult thing to deal with once you noticed how the courtroom was set up? Do you think it gave either party an advantage or disadvantage?
Kevin Elder: It was first addressing the jury for voir dire and opening and closing statements because they were spread out, 4 were in the jury box and the other 8 in the audience. If you sat at your table and have a witness testifying it was weird having jurors sitting behind you. You had to stand and turn around to address the jurors and hold the handheld microphone and talk while wearing a mask. This made it difficult to communicate with the jurors. With the jurors wearing masks during voir dire it was hard to read their faces when they answered. Sometimes you can read a person by their expressions. When it came down to jury selections there were 2 panels of 14 people at a time brought in and one panel of 16 and we had to repeat our mini opening statements for each group. It seemed like I had to ask the jury the same questions three different times. This was time consuming and awkward.
Frederick Penney: What do you think was the most difficult thing to deal with during the trial because of the COVID-19 restrictions?
Kevin Elder: The handheld microphone, wearing the mask and always keeping my head on a swivel because jurors were located throughout the courtroom. The plexiglass was awkward because when we were talking to the judge he was behind the plexiglass, and we were wearing masks. It was more difficult to communicate. In general, everything was more time consuming. After each witness left the stand, the bailiff had to take the time to clean and sanitize everything on and around the witness stand.
Frederick Penney: Did you notice that the jury acted any differently than other cases that you have tried in the past?
Kevin Elder: Not really, but it was hard to evaluate how they were reacting because of the face mask. They did not have a deliberation room that could accommodate social distancing, so they deliberated in the courtroom, which was different as normally a jury has their own deliberation room. We purchased two clear shields instead of the masks and the court did not allow us to wear them. The judge had his mask on the entire time except when he read the jury instructions, but witnesses were allowed to take off their masks while testifying, so that was one positive thing.
Frederick Penney: How much longer do you think the trial went because of the COVID-19 restrictions?
Kevin Elder: It probably took 30 to 40 percent longer.
Frederick Penney: Do you believe either side had an advantage because of the COVID-19 restrictions?
Kevin Elder: No, both parties had to deal with the difficulties of trying the case.
FREDERICK PENNEY’S FINAL THOUGHTS ABOUT JURY TRIALS DURING COVID
Several lessons were learned from Mr. Elder’s trial. These have been discussed and the issues raised some real problems going forward with jury trials if the COVID-19 restrictions continue to be in place. However, the main question that was not answered was how long this will continue? Will the courts use similar restrictions in the courtroom after the pandemic passes? Are there things that may be implemented or continue to be used by the courts to keep people physically healthy? Will the social distancing continue for a short time or become the mainstay? Only time will tell.