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    June 17, 2021 Practice Points

    Reflections on My First Post-COVID Jury Trial: What a Difference a Year Makes

    Being able to get back in front of juries will go away long way toward getting justice for our clients.

    By Michael S. LeBoff

    Having just completed my first post-COVID trial, I thought it worthwhile to reflect on some of the differences between pre-COVID and post-COVID trials.

    The biggest difference was simply getting back to doing things in real life. Over the past year, I have done several remote mediations and Zoom depositions, and got to the point where I convinced myself that Zoom appearances were just as good as the real thing. I was wrong. Having gone back to an in-person proceeding, I did not realize how important it is to step away from the screen and to interact with other people in person. Zoom and other remote means have kept us going through the pandemic, but I am a much bigger proponent of in-person appearances than ever before.

    As for the trial, another significant difference was access to the courtroom. In the old days, I or anyone else could just walk into any courtroom. Today, access is much more restricted. This requires advance planning. I had to make sure my client, witnesses, and support staff had passes so they could get into the courthouse. It would have been difficult to call the office and have someone run over because I forgot a computer cord or notebook of exhibits.

    Facemasks was another major difference. I chose to go with a hard plastic clear facemask, so that the jury could see my face and my glasses would not fog. But I needed a mask that I could wear all day. The witnesses were behind plexiglass and not required to wear a mask when testifying. The judge and jury wore masks all the time, making it much more difficult to read what they might be thinking.

    The geography of the jury was also different. Rather than having all 12 jurors in the jury box, there were only four in the jury box. The other nine, including the alternate, were spread throughout the gallery. This made it challenging to find a place in the courtroom where I could address all the jurors, without having my back to them while examining witnesses. We also had to be sure that our demonstratives were simple and able to be seen from all angles and distances within the courtroom.

    Finally, while I have always appreciated courtroom staff, the post-COVID trial brought a much deeper sense of appreciation for what the court staff have to endure. As the trial attorney, I probably missed the vast majority of the differences because they were quickly and competently handled by the judge’s staff without incident. The post-COVID trial does not happen without their dedication and efforts.

    I am hoping my second post-COVID trial looks a lot like my last pre-COVID trial. But, who knows? Nevertheless, being able to get back in front of juries, even with these modifications, will go away long way toward getting justice for our clients. Plus, it just felt good to be back in a courtroom.

    Michael S. LeBoff is a partner at Klein & Wilson in Newport Beach, California. 

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