A Litigator's Guide to Handling a Jury Trial During a Pandemic
(SEPTEMBER 10, 2020) - A Themis member, attorney John Stiff of Stiff, Keith & Garcia, LLC recently conducted his first trial in the COVID-19 era in New Mexico, which was uniquely challenging.
In March 2020, our state vacated all in-person hearings and jury trials due to mounting concerns about COVID-19. In July, our highest court reversed course, proclaiming that the jury trial is the foundation of the American Judicial System and Justice Delayed is Justice Denied. Trial courts were to restart civil jury trials.
I was hired only a short time before trial after in-house counsel for the client left for greener pastures. Taking over a file that another lawyer has worked on is usually a challenge and this case was no different.
Court Rules & Sanctions During COVID-19
Our state’s Supreme Court promulgated how jury trials would be accomplished. Social distancing would be strictly enforced, with an order from the Trial Court that any violation would result in sanctions. At all times I had to keep six feet between me and anyone else, whether I was in the Court Room or in the hallway. Everyone had to wear a mask covering nose and mouth. Plexiglass separated the witness from the courtroom. Plexiglass would also surround the judge, the court reporter, and the bailiff. Lawyers would be separated from clients with strict instructions not to speak with the client directly. Instead, the Court directed that counsel use a computer to “chat” with the client and provided a keyboard and a monitor in front of the lawyer and the representative’s chair. Because of social distancing requirements, the number of people that could be in the Court Room was limited to 25. Once the Judge, Bailiff, Reporter and jury were counted, each party could have one lawyer in the trial and one client representative. Staff, co-counsel, and the public had to watch from a “Google Meets” link. The entire trial was broadcast over this media.
The Judge told the jury that the lawyers would be using their cell phones, and not to be offended if they saw a party or an attorney texting during the trial. The court also provided headsets that allowed counsel to speak directly with the client, similar to what an airline pilot might wear when speaking with the radio control tower. In a quiet courtroom, whispers can be easily overheard. When I tested this, my paralegal could hear my whisper from the Box. Not a good idea.
Choosing the Right Jury in a Pandemic
The trial started Friday morning. We had done a mock, so we had an idea of the type of jury we wanted. The Voir Dire took place in the largest room available in the courthouse, the jury orientation room. Tables were set up at the head of the room for the judge, the plaintiff’s counsel, and the defense counsel, along with the court reporter. Chairs for jurors were set 6 feet apart, 5 rows deep with 6 seats across. The panel seemed unhappy about appearing for trial, with one juror complaining that the Deputies on the first floor, who were providing security were not wearing their masks over their noses and mouths, and that they refused to do so when asked. The juror gave the name of the officer to the Judge and asked that she investigate the situation. Jurors used an elevator to get to the assigned courtroom but only one juror could use an elevator at a time.
Jury selection was hard. The court asked us not to question the jurors about any concerns about COVID-19 because the jurors should not be discouraged from serving. We were told not to ask questions if any of the panel were worried about being exposed and to stay away from whether any family members had diabetes, asthma, or were immune suppressed. I can state that during the jury selection, some of the jurors voiced concern over having to attend a trial that might expose them to the virus. One juror complained that two people had walked within six feet of her. Another asked the Judge to make a note that one of the Security Officers refused to wear his mask over both nose and mouth even after she asked him.
We chose a panel of 6 plus 2 alternates. There was a heavy representation of people over the age of 60 in those who responded to the jury selection process, and, generally, I like older jurors. There were fewer younger people in the pool and those who attended jury selection were either retired or had been laid off. Most of those who had jobs easily got excused of the 8 jurors selected, 4 were men and 4 were women. Only one juror was under the age of 50. The oldest juror was in his mid-70s.
A Socially Distanced Trial Begins
During the trial, the judge continually stressed the need for strict compliance with the Supreme Court order. Masks were always to be worn. No physical object could be handed from one person to another. Every exhibit had to be scrubbed with antiseptic before being published to the jury. Each juror had to have their own notebooks. Any exhibit added to the notebook had to be cleansed by the bailiff, wearing a mask and gloves, before it was added to each notebook. There was heavy reliance on my firm’s LCD projector, and we rented a screen that was available for use by both parties. There was no podium allowed since each surface had to be disinfected before another person touched it. We stood to speak to the Court or the jury from our chairs. I built a podium out of my chair, a box, and my leather briefcase.
During the five-day trial, the jury grew tired. They were impatient after the third day and easily frustrated. In most trials, after the second or third day, the jurors start to make friends, and one can see smiles as members great each other; maybe hear some laughs from the jury assembly room in the mornings. Not this time. No smiles, no greetings. Just business.
For bench conferences, the judge required the lawyers, the court reporter, and the judge to go into the Jury Deliberation Room, again making sure to maintain 6 feet of distance between everyone at all times. As a result, the court asked us not to request bench conferences except when it was truly necessary. For the most part, objections were, as in federal court, limited to one or two words, and speaking objections were discouraged.
Jury deliberations, after the closing argument, were shorter. The jury came back after only an hour and a half, shortly after lunch, the morning after closing arguments. It was a compromise verdict. After the jury’s decision was announced, most of the panel disappeared quickly, not wanting to stay to talk to each other or the lawyers. Three stayed. The client called after the verdict saying, this was a win.
Learning from the Changes & Getting Stronger
In summary, this trial was as difficult as I have had. In particular, the fact that witnesses wore a mask covering their facial expressions hindered the jury’s evaluation of credibility. It is difficult to estimate the impact of strict compliance with social distancing rules on the jury’s deliberation.
I wonder if they were mad at having to come to Court each day while the news outlets were reporting increasing virus-caused deaths, with a map of the State in the local news with the number of new cases each night.
With the trial behind me, though, I learned so much about what to expect in the coming weeks, months, and maybe even years. Litigation looks different during the COVID-19 era, and I and my law firm are ready for anything. (John Stiff, Stiff, Keith & Garcia, LLC) |
Zarwin Baum DeVito Kaplan Schaer Toddy, P.C. Expands with Addition of Attorney Randy MacTough
(JULY 9, 2020) - Zarwin Baum DeVito Kaplan Schaer Toddy, P.C. – part of Themis Advocates Group – has recently expanded its casualty and professional liability defense practice group with the addition of Attorney Randy MacTough. He will be working out of the firm’s Wilmington, Delaware office, where he will lead his practice group.
Attorney MacTough is known by clients, law firms, and insurance groups alike throughout Delaware for his extensive experience and efficient approach to casework. He has personally litigated complex civil cases in front of state-level and federal-level courts in Delaware. Some of his most prominent case victories involved defending large corporations and smaller organizations in the healthcare, transportation, and higher education industries. Case types he has managed for such clients include but are not limited to premises liability, transportation, professional liability, products liability, toxic tort, and employment disputes.
A client-focused approach to litigation allows Attorney MacTough to produce creative solutions specifically catered to each client’s individual needs. He is a litigator who takes pride in providing every client with carefully crafted representation, not cookie-cutter work.
Before joining Zarwin Baum DeVito Kaplan Schaer Toddy, PC. Attorney Randy MacTough practiced at the Delaware offices of well-respected law firms where he obtained valuable practical litigation experience. Randy also gained unparalleled insight into the judicial decision-making process as a law clerk for the Superior Court of Delaware and as a judicial intern for the United States Court of Appeals for the Third Circuit.
When not working on a client’s case, Randy usually spends his time by staying active in his community. For the past four years, he has served as a Guardian Ad Litem for The Office of the Child Advocate for Delaware. As a Guardian Ad Litem, he provides legal representation to children who are in the custody of the State of Delaware due to neglect and abuse.
From everyone at Zarwin Baum, we are honored to have Attorney MacTough join the firm and lead our growing practice in Delaware. From all of us with Themis Advocates Group, we send sincere congratulations to Randy and Zarwin Baum and look forward to hearing about all the great things you will be able to achieve for clients together. |
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Righi Fitch Law Group Is Proud To Announce The Addition Of A New Attorney To Our Team
(JULY 29, 2020) - Righi Fitch Law Group is proud to announce the addition of a new attorney to our team: Linda Tivorsak Bird! She is an experienced trial attorney who has handled a variety of civil defense cases that range from premises liability, to personal injury and wrongful death. She has also represented individuals involving employment law, where she has responded to charges of discrimination, wrongful termination, and harassment. In addition to her civil practice, she is also an experienced criminal defense attorney. She has conducted over 35 criminal jury trials, hundreds of settlement conferences and has significant courtroom experience. Linda is a proud graduate of Yale University, and the University of Kansas School of Law.
When Linda is not busy with work, she is quite the adventurist. She enjoys participating in full and half Ironman triathlons, as well as running, paddleboarding, and skiing. She is also fluent in conversational Thai and has been an alumni interviewer for prospective Yale students for over ten years. She is also the immediate past-President of the Yale Club of Phoenix.
We are excited to have Linda on board the Righi Fitch team and we look forward to watching her grow with our firm.
We wish you the very best during these trying times. Be well.
Please contact Beth Fitch at 602) 385-6782 or Rick Righi at (602) 385-6780, Founding Partners for Righi Fitch Law Group, if you have any questions or concerns. |
Tort Reform Louisiana House Bill 57
(JULY 31, 2020) - On July 13th Louisiana Governor John Bell Edwards signed HB 57, Louisiana’s Tort Reform legislation, into law. The law, which goes into effect on January 1, 2021 and applies to causes of action arising after that date, covers the following topics:
1) Lowering the jury verdict threshold to $10,000
2) Excluding the existence of insurance coverage from the jury
3) Limiting medical expenses to the amount actually paid with the court awarding the claimant 40% of the difference between the amount billed and the amount paid provided the award is not unreasonable
4) Repealing the statute that prevented evidence of plaintiff’s failure to wear a seat belt to prove comparative fault
Jury Trials:
Previously a jury trial was only authorized when the amount in controversy exceeded $50,000. The new law reduces the threshold for a jury trial to $10,000. Under the new law, if a plaintiff stipulates or otherwise judicially admits that the amount in controversy exceeds $10,000 but is less than $50,000, a party requesting a jury trial must provide a cash deposit in the amount of $5,000. Previously the jury bond was fixed by the court and due no later than 60 days prior to trial. Exceptions may need to be filed prior to answering to determine the amount in controversy where the petition does not specify that the amount in controversy exceeds $10,000 but is less than $50,000.
Evidence of Liability Insurance:
The new law provides that the existence of insurance coverage shall not be communicated to the jury. The law retains the prior language that although a policy of insurance may be admissible, the amount of coverage under the policy is not communicated to the jury unless the amount of coverage is a disputed issue for the jury to decide. There are three exceptions to the new law prohibiting evidence of the existence of a liability insurance policy: 1) if there is a factual dispute related to coverage for the jury to decide; 2) if the existence of insurance coverage would be admissible to attack witness credibility; or 3) if the cause of action is brought against the insurer alone under the direct action statue or bad faith is alleged. However, even under the new law, in all cases brought against an insurer the court shall read instructions to the jury that there is insurance coverage for the damages claimed by the plaintiff at the opening and closing of the trial.
Past medical expenses (collateral source):
The new law provides that where a claimant’s medical expenses have been paid, in whole or in part, by a health insurer or Medicare, the claimant’s recovery of medical expenses is limited to the amount actually paid or owed by the claimant and not the amount billed. However, the court must award 40% of the difference between the amount billed and the amount actually paid, unless the defendant proves this would make the award unreasonable.
The limitation to the amounts paid includes any amounts remaining owed to a medical provider, including medical expenses secured by a contractual or statutory privilege, lien, or guarantee.
In a jury trial, the plaintiff can still present evidence of the amounts billed, and only after a verdict is rendered can a defendant present evidence to limit the recovery pursuant to the new law. During the trial, the jury is only informed of the amount billed. Whether any person, health insurer, or Medicare has paid or agreed to pay in whole or in part any of the medical expenses is not disclosed to the jury.
The new law codifies the Louisiana Supreme Court’s decision in Bozeman v. State, 879 So.2d 69 (La. 7/2/04) and states that in cases where medical expenses were paid by Medicaid, recovery is limited to the amount actually paid to the provider by
Medicaid.
The new law also codifies the Louisiana Supreme Court’s decision in Simmons v. Cornerstone Investments, LLC, 252 So.3d 491 (La. 5/8/19) and states that in cases where medical expenses were paid pursuant to Louisiana Worker’s Compensation Law, recover is limited to the amount paid under the medical payment fee schedule.
Seat Belt:
Prior law provided that the failure to wear a seat belt was not admissible to mitigate damages. This section has been repealed and allows for the admission of evidence of the failure to wear a seat belt.
Our firm participated in meetings with state Senators, presented topics at the Property and Casualty Insurance Committee meetings in Baton Rouge, LA, and drafted some of the proposed legislation. This is a positive step forward in a lengthy and ongoing process of tort reform measures in Louisiana which we hope to continue to progress through our efforts. - (Perrier & Lacoste) |
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