EBG attorney William O. Stein
recently obtained a complete defense verdict in one of the few jury trials to be tried during the pandemic. I recently sat down with him for a Q&A regarding his experience trying a “socially distanced” jury trial during the pandemic and how it differed from a regular jury trial.
Q: What was it like trying a “socially distanced” jury trial case during the pandemic?
Jury trials always have their own challenges, but this was unique. The jurors had to wear masks at all times. The lawyers and the witnesses had to wear face shields so the jurors could see our faces during examinations, opening, and closing. The biggest issue was the unknown: Will the jurors stay focused if they are concerned about getting COVID? How can we make sure we all stay healthy? There was always the concern that after putting so much time and effort into getting ready and being in trial for a few weeks that orders could come down from the Governor’s office, City, or County shutting down the courtroom, likely resulting in a mistrial and putting our case in limbo.
Q: How did social distancing requirements impact the trial?
I do not think it impacted the outcome; it did not change the case we presented or the evidence we put on. The judge wanted to make sure that the case finished once it started, so there was more of a sense of urgency to complete the trial. It did not affect the way we tried the case, but it did affect the way we conducted ourselves in the courtroom to the extent that we always had to be cognizant of wiping down areas in the courtroom and using hand sanitizer. The court reporting agencies would not send court reporters to the courtroom, so the court reporter was on Zoom. We had to make sure that all of the witnesses more spoke slowly, loudly, and clearly so that we could have a clear and accurate record.
Q: What was the biggest difference from a regular trial?
Adjusting to the social distancing and other COVID protocols. We had to stand at a podium when examining witnesses, and it had to be wiped down each time one of the attorneys examined a witness. Wearing a face shield when giving opening and examining witnesses was an adjustment. Having the jurors spread throughout the courtroom and wearing masks was interesting because it was difficult to see their reactions throughout the trial.
Q: How, if at all, did the jury selection process differ from a regular jury trial?
How did you contend with jurors being concerned over having to attend a trial that might expose them to the virus? We had a much smaller pool of jurors to select from. We were down to the last 12 in the pool, and stipulated to going forward without any alternates. Since the jurors wore masks the entire time, it was hard to get a read on how they were reacting during voir dire and to see their facial expressions when they were answering questions. The jurors were surprisingly dedicated. Once picked, they were all in. We had two jurors call in believing that they may have had COVID, causing a delay in the trial and only 11 jurors deliberating. The jurors were given the opportunity to ask to be excused or to have the trial delayed further each time one of the two jurors believed they may have had COVID, but they elected to continue on to verdict.
Q: What were some of the lessons learned from your experience? What worked well and what didn’t?
While there is a risk with proceeding with a jury trial during a pandemic, we were able to get it done because the courtrooms in Yolo County, California are modern and spacious. That allowed the lawyers, witnesses, client representatives and jurors sufficient space to socially distance. It would have been much more difficult to do in a smaller courtroom or more crowded courthouse. The judge took time before trial to go over the protocols, so we knew at the start how the trial would be conducted. I do not think there was anything that did not work, except that I learned it is difficult to try to put reading glasses on and off while wearing a face mask.
Q: What was the biggest challenge you encountered during the trial?
The biggest challenge was getting through the trial and staying healthy. We had a brief delay because one of the jurors felt that she had to get a COVID test in the middle of the trial. The courtroom had to be cleared so it could be disinfected. We did not know how many jurors would come back for fear of getting COVID when we resumed the trial. Luckily, the juror tested negative, and all of the jurors came back. However, on the day of closing argument, another juror called in and stated that he thought he may have COVID. The remaining jurors decided to continue with the closing and deliberations. At the end of the day, no one got the virus, so we all got out healthy and safe. But we did not know when we showed up each morning whether or not we would have enough jurors to continue with the trial.