Tips for the pandemic - era trial lawyer

Lynn A. Kappelman, Dawn R. Solowey and
Wiliam N. Berkowitz, BridgeTower Media Newswires

No matter how much your law school covered in those three years, trying a case in the middle of a pandemic was probably not on the syllabus. And even the grayest of graybeards in your litigation bar has no actual experience with anything like this.

So we must resort to the basics to start developing some common-sense suggestions for trial lawyers faced with the challenging prospect of conducting a jury trial during the era of COVID-19.

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Collaborate with your opponent

This is a particularly bad time to let disdain for your opposing counsel get the best of you. You need her and she needs you. Put aside past disagreements and the negotiating skills you pride yourself on; instead, roll up your sleeves and pledge to work together to bring real planning to your trial. Never has there been a greater premium on cooperation between opposing counsel.

Of course, your judge will have his own ideas, but he will likely look to counsel for what they may have already considered as part of an honest-to-goodness, productive dialogue.

Ultimately, everyone wants the same thing: a safe, fair trial that doesn’t result in hardship, mistakes or (heaven forbid) a do-over.

As we have written, you will likely be waiting a long time for your jury trial. While you wait, put the time to good use by planning for the worst-case scenario: trial during public restrictions or even a lockdown.

As a first step, push for a series of pre, pre-trial conferences. Come up with agendas that include pandemic-specific issues you wouldn’t ordinarily raise or even consider.

For example, can the courtroom physically accommodate your case while maintaining physical distancing? Will you need to relocate, or can simple changes be made to the existing layout? Will client personnel be allowed to crowd into the courtroom, and at what time? Can their numbers be limited? How many lawyers will be present and at counsel table?

Does technology need to be installed or managed during the case? By whom and where will they be? Which experts need to listen to the testimony of which fact witnesses, and where will they be seated? How will voir dire be conducted, and what limits can be agreed upon in advance?

Can you agree on time limits for other parts of the case — and stipulate that they are reasonable? What arrangements can be made for witnesses who are health care providers and thus essential workers?

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ADR and private jury trials

Given the many complications inherent in jury trials in a pandemic, civil litigants may opt to pursue alternative dispute resolution. The proverbial “courthouse steps” settlement may be less likely as parties seek to avoid the public setting entirely.

Mediations, relatively easy to conduct by video, will look more than ever like an attractive option. Even if the parties are reluctant to mediate, courts and judges will push them to consider it. Mandatory mediation programs such as those used in many circuit courts of appeals may become more widespread at the trial level.

A novel ADR option could be a private jury trial. Private vendors already provide mock jury services for parties to explore the strengths and weaknesses of their cases and get feedback from those who match the demographics of the likely jury. The mock jurors hear evidence, deliberate and render a verdict.

Such vendors could offer private jury trials to parties as a form of ADR — a jury trial without the large public gathering, and with greater efficiency, greater buy-in from the “jurors,” and more control over the health environment.

Strategize to shorten the trial

We all know those prospective jurors who cross their fingers and hope to be selected for duty. But let’s face it: They are in the tiny minority of the pool, if they even exist at all post-COVID.

The vast majority want nothing to do with you, your case, the judge or the courthouse. What they want is to go home and back to work. That desire for escape will be exponentially greater during pandemic-era service.

Counsel would be wise to empathize with that and conduct themselves accordingly by doing everything they can to shorten the amount of time that jurors must be on duty.

First and foremost, that means stipulating — and stipulating creatively. Eliminate every non-controversial fact by stipulation.

Take the time to hammer out the language to be read to the jury, and then agree that those facts will not be touched by any testifying witnesses (so that neither party defeats the point of stipulating).

Once that is done, examine the disputed facts carefully and consider whether they can be resolved by the court by summary judgment or bench hearing, which may (by stipulation) involve submission of deposition or live testimony outside the presence of the jury. Those facts may be deemed adjudicated by stipulation.

Once you have done everything you can collaboratively, turn to the ultimate weapon for slicing down the trial: the motion in limine. Consider every witness and document over which there will be a fight over admissibility. Ordinarily, those evidentiary issues would be contested during trial and at sidebar, with considerable delay. Can they be addressed up front?

We realize many judges roll their eyes at the prospect of resolving a dozen in limine motions before trial. But if recognized as part of a good-faith effort by both sides to shorten the trial, they will likely get the attention and careful disposition they deserve.

Counsel should schedule their in limine submissions to the court well in advance of the trial (even if the deadline is shortly before trial). Again, there should be plenty of time before civil trials are reached in most metropolitan areas.

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Keep in touch with your judge

Rule 16 of the Federal Rules of Civil Procedure allows for an unlimited number of pre-trial conferences for the purpose, among others, of “improving the quality of the trial through more thorough preparation,” and most states have similar rules.

No matter how experienced your judge, she likely will have little to draw on for conducting a trial in a pandemic. She is learning and trying out options just like you are. Cooperative support from counsel will almost certainly be welcome to achieve the critical goal of “improving the quality of the trial” while assuring the safety of everyone in the courtroom.

Preferably in concert with opposing counsel, a pre-trial conference should be scheduled far earlier than would be the case in pre-pandemic times, and all involved should anticipate a series of conferences with clear agendas leading up to the trial. If they’re not on the calendar, request them.

Counsel should expect that one predominant (and for many judges, new) feature of the pandemic-era jury trial will be strict time limits per side. Judges will want to assure jurors that their service will not exceed a specified amount of time prior to deliberation. The days of telling jurors to expect to sit for “two to four weeks” are probably over for the duration of the health crisis.

Instead, judges will likely press counsel to negotiate and stipulate to time limits; if they can’t reach agreement, courts have authority, within reason, to do so by order. Clerks should be directed to closely monitor the clock, and, with fair warning, judges should close down examinations upon the expiration of time.

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Embrace your inner Spartan

We know jurors often feel attorneys don’t respect their time and sacrifice while on duty. Counsel may be seen as bloviating unnecessarily or engaged in mind-numbing repetition. Any such anti-lawyer animus will be greatly magnified during the pandemic.

Avoiding time-wasting arguments, pointless questions, and doomed objections is not just a good safety measure; it is a good case-winning strategy. Successful attorneys will find themselves choosing silence over the esoteric or whiny objection that is destined for rejection by the court.

The strategic balance between winning the case and protecting every conceivable issue for appeal will have shifted during the pandemic. A Spartan approach to speech will be rewarded.

That approach should govern counsel’s decision-making in every phase of trial. Opening statements should be pared down to the minimum: Your case theme and the essential evidence that supports it.
Counsel can and should be candid with the jury: “I will not go over every bit of evidence you will hear; instead, I’m giving you the ‘executive summary.’”

Counsel can also use the opening to expressly thank jurors for their service during this time and commit directly to a streamlined approach.

In direct examinations, utilize broad questions that cover plenty of territory and allow the witness to do the talking, rather than a series of leading or “what did you do next” questions. For example, ask the witness to “tell us about the jobs you held before coming to Acme,” instead of leading the witness through every job, with multiple questions about each one.

The same is true for cross-examination. There will rarely be more than four or five key points counsel will need to establish in cross-examining any witness. These points should not be repeated, except in closing. Don’t put on three witnesses to make the point that one could. Make the points and move on, always assuming the jury has heard the testimony and that you (or your client) will be subtly penalized for any time-wasting repetition.

In closing argument, nothing should be sacrificed because of the pandemic — except repetition. Particularly in complex cases, visual aids (prepared well in advance) will strengthen and shorten your argument.

Of course, counsel should not conclude without acknowledging the unique burdens shouldered by jurors and courtroom staff during trial.

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Respect others in the courtroom

Showing respect for others in the courtroom was always expected of officers of the court, and important to the jury. This is ever more true in a pandemic.

If everyone is wearing masks, the court reporter may need whoever is speaking to raise a hand to identify herself. Counsel will have to be aware of where she is standing vis a vis the jury box, or other lawyers, to ensure social distancing.

While it has always been good practice to ask the judge for permission to approach the witness, counsel will need to be extra mindful of staying a healthy distance from the witness and using technology to show the witness an exhibit or demonstrative.

Even at one’s own counsel table, it will be important to observe protocols. While it can be a lot to think about on top of the other dynamics of trial, the jury will notice and care about these gestures of professionalism and care for others.

Many of these basic approaches are already routine for experienced trial lawyers. But during a public health crisis, they should be widely accepted as a basic “standard of care” in trial practice. Due process and other constitutional mandates will not be compromised for the sake of brevity, but at the same time, trial counsel plainly have a professional responsibility to honor those mandates in a way that does not compromise public health and safety.

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Lynn A. Kappelman and William N. Berkowitz are partners, and Dawn R. Solowey is senior counsel, at Seyfarth Shaw in Boston.