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November 18, 2020 Practice Points

Tips for Trials in the Time of COVID-19: Practical Lessons Learned

Trials are difficult and stressful in the best of times, but during the COVID-19 pandemic, courts have made changes to the process that require some advance planning

By Melissa Ho and Edward Novak

Since March, the U.S. District Court for the District of Arizona has had only a handful of civil trials. One of these trials was ours. Going into an eight-day jury trial that was rescheduled from March was not only daunting but was also a new process for the judge and court staff alike—as well as for our trial team. Here are the lessons we learned:

Jury Selection

  • During jury selection, jurors were socially distanced in the courtroom; for counsel to have an extra set of eyes in the room where jury selection takes place was helpful.
  • Jury questionnaires are your friend. Through the use of a robust jury questionnaire which included questions regarding concerns about COVID such as health risk or exposure risk, jury selection was accomplished in less than two and a half hours. (Prior experience had counsel worried it would take all day to seat an eight-person jury out of a pool of 130 jurors).

Exhibits & Witnesses

  • Get used to electronic-only exhibits. There was only one physical exhibit allowed in the courtroom, in this case a tire, that was completed wrapped in plastic and thoroughly sanitized. On a few occasions, the Elmo projector was used for last minute demonstrative items but gone are the days of passing paper to witnesses.
  • Witnesses that appeared remotely were able to see the attorney but not the jurors. The jury could however see the witness on a large screen in front of them. Again, it is critical to practice with those witnesses who may be testifying remotely to ensure the technology works and to ensure that they are not thrown off by what they will see on their screens.

Issues with Masking

  • Everyone except the witness wore a mask the entire time. Practice questioning with your witnesses in masks. You will be surprised how hard it is to get your timing and breathing right without first having practiced wearing the mask for long stretches of time.
  • Sidebars are hard to do wearing masks. The court reporter often could not always hear when counsel or the judge spoke through a mask. Check in with the court reporter, especially during sidebars, to ensure that the record is clear.
  • If you are an attorney that likes to write on a large easel, note that with a mask on the attorney had to stand close to a microphone, and the microphone was often nowhere near the easel. There was quite a bit of walking around with the microphone and tripping over microphone cords.
  • Assessing juror attention or interest is basically near-impossible with masks on. If they are taking notes you can tell they are listening, but other than that there is no way to gauge attention span. Make sure all witnesses speak directly to the jurors and not the attorneys. In a time like this, having a witness who is not wearing a mask make that connection with the jury is all the more critical.

Issues with Social Distancing

  • Due to courtroom spacing issues, if you have multiple attorneys on a case, only two may end up at the counsel table (six feet apart). Bring lots of notepads and sticky notes, because the ability to consult or whisper to each other is now non-existent.
  • Jury deliberations in our case took place in the courtroom and not the traditional jury room, in order to give jurors room to spread out. All items used by the attorneys (such as exhibit books) had to be cleared out of the courtroom prior to deliberations. We brought a dolly with us to move items back to the office
  • There was some media interest in this case. The courtroom was limited to only 10 in the spectator gallery, so an audio line was set up for those who wanted to listen in from outside the courtroom.

We were very fortunate to have enthusiastic and professional court staff. This was the first COVID trial for this division and they had in place protective measures to make everyone, including jurors, feel safe throughout the course of trial.  While not ideal, trying a case while being spaced six feet apart and with masks on is workable. It just takes some advance planning, extra practice and a willingness to be flexible with technology and trial preparation.

Melissa Ho and Edward Novak are with Polsinelli, PC, in Phoenix, Arizona.

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