Health Law Monitor
Tips for Pre-Trial Practice During a Pandemic
June 15, 2020
Now that I can get my haircut and eat at my favorite restaurant, do I have to go to court? Businesses across the country are looking to reopen and courts are feeling their way through the limitations necessitated by COVID-19, how to safely move forward, and dealing with backlog. Federal and State Courts initially went into partial shutdown, focusing on handling essential or emergency matters only. Lawyers were left to figure out how to move parts of their practice into a virtual setting.
By now, most of us have had the opportunity to do depositions or mediation by Zoom. Pretrial proceedings are routinely done remotely. Courts that initially put civil litigation on hold are being faced with further backlog and litigants will be expected to move their cases forward without waiting for an effective vaccine to allow everything to return to “normal.” Courts in general are less willing to allow postponement of discovery to permit in-person depositions. Cases involving healthcare providers and facilities have the added issue of resources being focused on COVID-19 and, at least initially, there has been a recognition by parties, attorneys, and the courts that litigation should not interfere with essential services.
As states begin to re-open, Courts are also looking at how to begin their re-opening processes and resume trials. Many Courts across the country have been issuing orders related to resuming practice before the bench. Many courts have screening processes, have eliminated “cattle calls” for hearing and have set guidelines for use of virtual platforms like Zoom and Skype for hearings. What is missing in these numerous orders is an answer to the question how to return to civil jury trials.
At one recent remotely held court hearing the judge asked all the attorneys if they had any ideas on how to hold a jury trial. Courts have investigated options ranging from using other buildings with conference centers large enough to spread out the jurors and parties, to conducting portions remotely. While hearings conducted remotely have become the norm, few have tried remote trials. Small claims and County Court are some of the first to attempt court trials remotely. One district court judge in Colorado is currently planning to attempt a jury trial in which all parties and witnesses are remote, with just the judge and jury in the courtroom. While criminal cases will continue to take priority as jury trials resume, judges feel freer to improvise with civil trials. But not all courts resuming trials have had good results. The first jury trial in Hennepin County, Minnesota landed the Judge and staff all in quarantine. See https://www.startribune.com/first-hennepin-county-jury-trial-since-pandemic-results-in-quarantine-for-judge-and-her-staff/571165002/ (last visited June 12, 2020).
What can we as trial lawyers due to improve pre-trial practice both in a virtual setting as well as when returning to court?
- Early Evaluation
Of course, we have heard this from clients for years. But aside from determining if a case should settle or go to trial, an early evaluation helps determine what is necessary for trial. Do a thorough investigation to identify what is critical to the case and focus on the key issues. If you were given one or two days to present everything to a court, what would you choose? How can you focus the case in the same way for a jury?
- Control Exhibits
There are 20,000 pages of medical records, policies, social media postings that no jury could ever view. Figure out what you would want to show if you were making a 5-minute video and condense the information in your exhibits with timelines, summaries, demonstratives etc. Federal and many State courts have moved to electronic presentations so exhibits can be viewed without passing those germs around on documents.
- Sit Down and Stipulate
Yes, we all deal with jerks sometimes who won’t agree to anything but forget the party line and try sitting down (at a socially safe distance or face to face on your laptop) with other counsel and look for areas of agreement. Witnesses aren’t necessary for every exhibit. Some facts are obvious without testimony. Cooperate on scheduling witnesses. You can’t know how much you can narrow things until you try.
- Involve the Court
Judges appreciate you saving the court’s time and jurors’ time at trial. Push for decisions on issues that can’t be resolved through stipulation. No one likes being limited by the court, but as long as the sides are treated fairly, time limits, limits on number of witnesses, avoiding cumulative evidence, can ultimately make the case stronger.
Shortening the time you spend in the courtroom can help accommodate challenges imposed by the pandemic. Whether it is the longer breaks needed so there are fewer people in the bathroom at a time or finding a slot for a 5-day instead of 10-day jury trial around the backlog of criminal cases. It has an added benefit of reducing costs to the clients.
As jurors return to duty the pool may become less diverse, with older individuals more likely to be excused due to health concerns. Unemployment or recent return to employment can affect the attitude of citizens toward jury service. It remains to be seen whether the pandemic influences jury decisions, but more than ever, attorneys should be respectful of jurors’ time and work together to streamline cases. Beyond the issues of social distancing and hand sanitizer, steps to make jury trials more efficient can carryover past the current pandemic to make civil jury trials more affordable and available for litigants.
The American Board of Trial Advocates, a national organization of trial attorneys from both sides of the bar dedicated to civility in the prof ession and preservation of the Seventh Amendment right to civil jury trial, recently released Guidance for Conducting Civil Jury Trials During the COVID-19 Pandemic. The task force assembled resources across the country to address options that may arise in different courts, including steps to take to comply with CDC recommendations during in person trials, and potential use of remote for jury selection and presentation of testimony. The white paper and other resources are available at www.abota.org.