True trial lawyers consider the chance to be before a jury the most thrilling aspect of the job. But it doesn’t mean it’s not equally exhausting, stress-inducing and anxiety-provoking.
Throw in a global pandemic and you’re likely facing new anxiety triggers, like pushing to get your client’s day in court in a timely manner, being out of practice with your craft, and the mystery around jurors’ beliefs, attitudes and personal experiences of Covid-19.
If you find yourself with an upcoming jury trial date and are wracked with these feelings, you’re in luck. Three seasoned trial attorneys who are among the select group who have tried cases before juries during Covid are here to help.
You’re in even more luck if your upcoming trial is in East Texas federal court. During the Eastern District of Texas’ mini virtual bench bar conference on Friday, trial lawyers Lisa Blue, Tom Melsheimer and Ernest Gonzalez shared their experiences and lessons learned from trying cases before the Covid-era jury in the Eastern District. Blue, who is also a psychologist, provided numerous psychological insights that shed light on the mindset of jurors.
Below are the lawyers’ key takeaways.
Maximize the purpose of questionnaires
Blue reminded the roughly 200 lawyers tuned in to the conference that most people — jurors included — are afraid of public speaking. That’s where the written questionnaire comes in handy.
“There are two things humans love: They love attention and they love to be asked,” said Blue, who recently tried a case in Sherman before U.S. District Judge Amos Mazzant.
Which, Blue added, is precisely why any Covid-related questions should be included on written questionnaires since “it’s so personal.”
The other problem that comes from jurors’ likely aversion to public speaking is that they won’t speak up if someone else on the jury is “misbehaving.” This makes it all the more important for the lawyers and presiding judge to collaborate and develop an FAQ, which could serve as a template of questions that the judge can use to check in regularly with the jury on whether they feel safe or comfortable.
Leave the Covid talk to the judge
Blue said that lawyers, on the other hand, should at all costs avoid bringing up Covid with the jury — particularly during jury selection, the time period when you know the least about the panel before you.
“Say Tom [Melsheimer] gets up and you talk about Covid in voir dire,” Blue said. “What you’ve done is caused jurors’ brains to go to that issue when you don’t want their brains to be on Covid, because there’s nothing good about Covid. Talking about Covid and now saying you want $2 billion [in an IP case] … it doesn’t work.”
Melsheimer agreed, adding that talking about Covid also opens up jurors’ minds to politics, since they are so interconnected.
“The elephant in the room is the politics of all of this,” said Melsheimer, who has tried two cases before a jury during the pandemic. “I think lawyers should stay away from that.”
He pointed out that jurors’ viewpoints around Covid are going to look very different while “trying a case in Oakland versus Texarkana or in Austin versus Lubbock.”
Even mask design can get political, which is why is why Melsheimer suggests wearing one “as bland as possible” during trial. He said a colleague gave him a tailored black mask, and “someone told me, ‘Oh, that’s a Biden mask.’ It’s interesting what people will react to.”
Speaking of jury selection, Gonzalez reminded the audience to give the process extra attention since it is “hard to get a read or reaction” when all the jurors are masked.
“I think you have to change the tactic in how you ask questions,” said Gonzalez, an Assistant U.S. attorney in the Eastern District of Texas. “You have to ask more specific questions. Zero in on some individuals that you’re not getting any kind of read from and ask them more specific questions.”
Tips for keeping your trial team safe
Blue pointed out that while she felt safe in Judge Mazzant’s courtroom during trial, she did not feel safe in the trial team’s warm room at the Sherman Holiday Inn, where the environment was not as controlled and there was less room to spread out.
“I think it’s so important for judges to remind trial lawyers to be safe,” said Blue, who has her own firm in Dallas.
Marshall lawyer Melissa Smith, who moderated the panel, suggested thinking outside the box when it comes to finding a war room for trial. She said that during a recent trial her team rented out a nearby wedding venue, which provided plenty of space for the team to congregate at a safe distance.
“It was very inexpensive because no one’s using them,” she said. “I was very grateful to the client who allowed us to do that.”
While Gonzalez was in trial, he said his team also made sure to find a location that provided ample room to spread out. In addition, they would sanitize any documents the team shared and, during witness prep, reduced the number of people from the team who would participate, whereas in the old days everyone would be present. And because the tight quarters of prisons have made them more prone to Covid outbreaks, Gonzalez said he would remind the marshal to keep inmate trial participants separated “as much as possible.”
If you’re one of the leaders of a trial team, Melsheimer suggested listening more than talking when it came to planning how to keep the team safe throughout trial.
“I tried to listen to our team members about what they had concerns about — what was making them anxious about a trial in a pandemic, what the needed to hear from us and steps we needed to take,” said Melsheimer, the managing partner of Winston & Strawn’s Dallas office. “We took advice of our younger lawyers who were in some ways more in tune to issues than some of the more seasoned lawyers were.”
After receiving feedback, Melsheimer said his team made adjustments like getting individual meals for each team member to avoid the buffet line that one large food order creates and having everyone work from their hotel rooms instead of a war room.
“It was an injury to the collegial atmosphere of working together, but it was a benefit to people’s anxieties and safety,” he said.
Virtual proceedings
The panelists were not huge fans of virtual proceedings, with a few exceptions.
Melsheimer said he’s been surprised about how effective mediations over Zoom have been, but the only type of proceeding he’d like to stay virtual after the pandemic are “routine motions or status conferences.”
Gonzalez said there have been “some” proceedings that work well remotely, such as arraignment, but that others like detention hearings have been difficult in terms of nailing down the “speed of questioning” and “getting the right tone.”
Blue, on the other hand, was less shy about her feelings on virtual proceedings.
She said she is “begging every judge and lawyer” to “fight virtual jury trials.” During a recent online focus group, Blue said someone lit up a cigarette and by the end of the presentation, “one-third of the group ended up laying down.”
“It’s like having sex by mail,” Blue said, comparing virtual advocacy to in-person trials. “You just can’t replace it.”