Anybody who works in litigation knows that rolling with the punches is part of the job, and occasionally, even part of the thrill. But, when you throw the COVID-19 pandemic into the mix, you’re faced with a host of uncertainties and no rule book on how best to navigate the waters.
COVID presents a number of risks and is undoubtedly on the minds of every person in the legal industry. But the wheels of justice must continue to trudge forward, even in the muck of a pandemic.
As thousands of lawyers across the state adjust to mediations, hearings, arbitrations, and bench trials via Zoom, a few legal teams prepare for jury trials, not on Zoom, but in real life — like we used to do in the “olden days.”
At Carrington Coleman, business litigation chair Alex More and managing partner Monica Latin were among the few gearing up for a COVID jury trial. After a two-week jury trial in U.S. District Judge Amos Mazzant’s court in Sherman, a panel of 8 jurors unanimously cleared their client, the San Francisco-based health tech startup Hint Health, on theft of trade secret and fraud claims.
After giving these attorneys some time to catch up on some much-needed sleep, I spoke with Alex and Monica about their experience trying one of the first in-person jury trials in the state during the pandemic.
Let’s get the obvious out of the way: Zoom is a pandemic lifesaver. We may all be Zoomed-out, but it was a lifesaver during trial prep. While offices remained closed and we all settled in to remote-working, our team had marathon Zoom strategy sessions. We may have been in three different locations and wearing athleisure, but we were every bit as effective. And perhaps more efficient.
“Platforms like Zoom eliminate the need for travel (even if only local), making it much easier to work preparation time into the witness’s schedule,” Monica said. “It’s also easy to stop and start as needed, or break what would traditionally be fewer, longer, in-person sessions into more, shorter sessions. It’s night-and-day different from a telephone conference, and not terribly different in effectiveness from slogging through materials in a conference room – or maybe better, because it’s easier to break up the sessions. It’s not perfect for all purposes, but for preliminary sessions or long-distance needs, it is tremendously useful.”
Clients who could not travel were able to meet virtually, and Alex found it to be a fantastic tool for prepping witnesses. “So much so,” he said, “that I’ll continue to use Zoom for going over the basics, discussing key topics and other general information related to testimony prep.”
And here are a couple helpful tips from the trenches:
1) Screen-sharing during virtual meetings can become a distraction to the flow of discussion, it minimizes face-to-face contact, and it’s a cumbersome way to flip through long documents. If document review will be an important goal of a meeting, send participants a notebook of hard copies ahead of time so all participants can look at the full document together. Old-school? Perhaps. But unless participants have dual screens and the ability to download a set of electronic copies, the ability to review docs and communicate effectively becomes more of a challenge.
2) If attendees have never participated in virtual meetings, it’s a good idea to provide a test link before the scheduled meeting. This allows them to work out glitches and provides them with an opportunity to play around with some of the screen features before the actual meeting. It’s also a timesaver and helps everybody stay on task.
Tiny War Rooms in Public Spaces
Aah. The “war room,” a/k/a your-home-away-from home for the next fourteen days. Sometimes, you need a little mix of luck and creativity to make war room space work well. And our trial team had both.
The trial team was fortunate to find a nearby hotel that had space to accommodate everyone, along with our dual monitors, large printer/copier/scanner, supplies, and shelves for binders and files. All hotel furniture was cleared out, which allowed the team to configure the space in a way that worked.
Instead of traditional rectangular tables, the trial team brought in four, large circular tables placed in each of the corners of the war room, each one with a docking station and monitors.
“We needed the ability to work together, yet separately,” Alex said. “This gave us a sense of having our own private workspace, but also provided safe-distancing.” And because of the circular tables, if we needed to pow-wow at the same table, there was still plenty of room to spread out.”
The war room was stocked with the usual COVID-era supplies: Clorox wipes, disposable face masks, hand sanitizer, gloves, Lysol, etc. But it also had the essentials: a refrigerator, a microwave, and lots of snacks.
Selecting a jury during a pandemic was a tad surreal.
Judge Mazzant had a number of procedures in place long before the trial date that addressed how COVID-19 would impact court procedures.
On the morning of voir dire, jurors lined up outside the courthouse, social-distancing and donning masks. After having their temperatures checked and clearing security, a panel of 38 potential jurors was ultimately seated in the courtroom.
The courtroom was large and afforded space for serious distancing: jurors were seated in the gallery at least 6 feet apart from each other and seated every other row. Gazing at a group of jurors with face masks and not squeezed into the rows like a bunch of sardines was a stark reminder that we were, in fact, living in COVID times.
Alex, who conducted attorney voir dire, was initially concerned that jurors would be less inclined to participate because of the distancing and the masks, but they proved him wrong.
“The venire was no less active than during non-COVID times, and I found their participation and level of engagement to be remarkable,” he said. “I think every member of the panel expressed an opinion about one thing or another. But for masks and sitting 3 yards apart from each other, you’d never know there was a pandemic going on.”
Mask Up, People
Per court and state orders, every single person wore a mask for the entire trial.
Initially, we were concerned about the inability to see the jurors’ faces during voir dire, but it really was not an issue. Plus, because of distancing protocols, they were so far away from counsel table that observing micro facial expressions would have been difficult even without masks. During testimony, witnesses and the speaking attorneys were allowed to remove their masks, which allowed jurors to observe Q&A as they normally would, with one exception: the witness box was surrounded by plexiglass.
The plexiglass caused some audio issues. Because the witnesses were literally boxed in, their voices reverberated off the plexiglass, causing them to feel as though they were being too loud, when in fact jurors sometimes had a hard time hearing them.
So, a tip for witnesses: sit a little further back to allow for more space between your face and the plexiglass, adjust the microphone, and be prepared to feel a tad “shouty.”
COVID Brain Fog
Trade secret cases are complex, and this particular case involved computer software design and the integration of platforms, so the content had the potential to cause brain overload. Every trial team tries to maintain juror attention and present testimony in a way that’s digestible and understandable, and the Carrington team was no different. Jurors enter the courtroom on a normal day with a lot of stressors, and we wondered whether jurors would truly be invested in the process.
As luck would have it, they were all in.
Jurors do the very best they can with whatever circumstance and facts they’re presented, and this trial was no different. The jury paid close attention throughout the two-week trial, and we know this not only based on daily observations, but also because Judge Mazzant allowed jurors to submit questions to be asked of each witness after they testified. The submissions were detailed, well-thought-out, and demonstrated that they were listening intently to some very complex testimony.
Case in point:
“Why would you have more specific language around non-disclosure and confidentiality in an independent contractor agreement than a partnership agreement where much more confidential information would be expected to be shared by both parties?”
“Can you confirm that searching software for source code does not force code check-in? In other words, is it a manual progress for the developer to enter the code when available? Correct?”
Jurors were clearly not phoning it in.
They were assessing the courtroom dynamics as well. In fact, the judge allowed counsel to talk with jurors after the verdict and one shared a cautionary word: “Those masks don’t hide your facial expressions as well as you may think.”
COVID Travel and Zoom, Part 2
The key storytellers for our client, Hint Health, were scattered around the world. Pre-COVID, witnesses would have hopped on a plane and been available as-needed. But the pandemic did present a few wrinkles.
One witness could not attend because a family member had a health condition that made potential COVID exposure extremely risky. So, the team made the decision to put safety first and not call that particular witness.
Another critical witness in the case lived overseas in a country that experienced ever-changing border closures and lockdown orders. This witness also had serious medical conditions that made travel extremely difficult, but he chose to make the trip at the last minute, after his country ended a ban on travel, and ended up being a pivotal witness for Hint.
And, Hint called one witness adverse, and agreed to permit her to testify live via Zoom. The testimony was practically seamless and free of technology glitches, thanks to the court staff’s amazing job testing all of the connections and equipment in advance. But there’s one challenge when questioning a witness remotely: walking through exhibits.
Fortunately, we had a plan for that. Prior to calling the witness, the parties negotiated the procedural terms and rules. A binder of exhibits was prepared ahead of time, and FedEx’d to the witness, who then opened the box on camera during the live testimony. Judge Mazzant also asked the witness a series of questions, under oath and prior to attorney questioning, where the witness certified that nobody else was in the room, that there were no additional electronic devices or other materials nearby. Despite one short flicker in connectivity, there were no issues whatsoever with the Q&A.
This particular courtroom did not have the ability to show jurors a split screen, so jurors were also provided with a copy of the witness binder. That way, jurors could follow along as well. A bit more cumbersome, but it worked quite well.
Monica handled the Q&A and thought the technology provided a good solution to an unusual circumstance. In fact, she felt the live digital experience gave her a key advantage over live courtroom testimony.
“Rule #1 in conducting an effective cross-examination is to control the narrative with strong, leading questions,” she said. “When you’re the only human in the courtroom talking, it’s much easier to be the center of attention. I had the ability to make eye contact with jurors; the witness did not. I think that’s a huge benefit.”
Going Back to the Bubble
We lived inside a courtroom full of more than 40 people day in, and day out, for more than two weeks. Meals and breaks were in the courthouse break-out room. And we spent hours in the hotel war room. While we did our best to keep our distance and maintain a clean environment, there were risks.
After trial, the team self-quarantined for 2 weeks. After the first week, several team members obtained COVID tests, and they were negative. To the best of our knowledge, and to our great relief, none of the jurors, witnesses, or anyone associated with the opposing side contracted COVID-19. No amount of precautions can completely protect any group of people, though, so it was a relief that there were no problems.
The Jury System Will Withstand COVID
After years of waiting to have their day in court, the Carrington team and Hint Health were excited to get there, pandemic or no. They had a stellar team that figured out a way to work together effectively, even when apart or social-distancing. Preparation was key to the trial’s success. The trial teams, judge, and court staff anticipated potential issues and worked through them in advance with solutions both high- and low-tech, making for as seamless a trial as one could expect under the circumstances.
The American jury system has always faced challenges: low pay, not enough citizens turning up for jury duty, accusations of bias, and more. COVID-19 is just the latest challenge. Last week, Judge Mazzant halted a case mid-trial due to a COVID outbreak and has since declared a mistrial after more positive cases, so while health protocols can mitigate the risk, there’s no such thing as a risk-free in-person jury trial (or any other kind of personal interaction these days). This certainly doesn’t mean we can turn a blind eye to the risks or halt the wheels of justice. Does this complicate an already-complicated process? Absolutely, but, as Alex pointed out, “Humans are adaptable, and we will acclimate as necessary.”
And the justice system will, too.
Kacy Miller is the president of CourtroomLogic Consulting, LLC, a Dallas-based jury and litigation strategy consulting firm that provides a broad spectrum of litigation services, including theme development, witness prep, and jury research. CourtroomLogic has been named one of the best jury consultants in Texas by the readers of Texas Lawyer.