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How is the Trial by Jury Being Impacted by COVID-19

(NOVEMBER, 2020) - Our forefathers brought to this country a fundamental right of a trial by jury of our peers through the Sixth Amendment to the Constitution. Jury trials continue to be a staple of the American Jurisprudence. The idea that one’s guilt is decided by a jury of their peers is romanticized by Hollywood, reorganized as an inalienable right of all Americans. The Covid-19 pandemic has presented us with an inherent conflict between public safety and a constitutional right, and it appears the jury trial as we know it, may face jihad. Backlogged dockets pile up, and courts are left with no choice but to conduct jury trials through unconventional methods or even virtually. On August 11, 2020, Judge Nicholas Chu of the Travis County Misdemeanor Court in Austin, Texas presided over a Class C misdemeanor traffic violation jury trial using the video conferencing tool, Zoom. The trial was the first case in U.S. history to be tried in such a manner and presented more problems than solutions. Thereafter, many states have resumed jury trials using a hybrid method such as Arizona, Florida, New Mexico, and New Jersey. See exhibit A. These modifications to the jury trial process, from jury selection to jury deliberation could give rise to constitutional challenges based upon a denial of the right to trial by a jury of our peers.

Exhibit A

(John Shaffery, Esq. – Poole Shaffery & Koegle)

Jury Selection

The ability to compose an impartial jury from a fair cross-section of the community is practically impossible. Vulnerable populations including low-income households and the elderly are likely to be excluded from the jury pool of virtual and traditional jury trials during the pandemic. The Pew Research Center found that nearly half of U.S. households with incomes below $30,000 a year do not have access to high-speed internet at home, and as many as 77% of senior citizens reported that they would require assistance when using a tablet or computer. While these populations are not representative of all that are excluded, a massive participation disparity is already created, and your jury panel is no longer representative of your jurisdiction.

In one of the first criminal trials conducted entirely via Zoom, a Texas court addressed the disparity in technology access by giving four prospective jurors court issued technology to report for jury duty. Two of those individuals were seated as jurors, but one was excused during the oath due to connectivity problems with the court-issued device. It began with a frozen screen, and despite the court’s attempts to remedy the situation, the judge eventually excused the juror that could not access the program. A total of five jurors, over 15% of the panel, were excused due to technical difficulties ranging from computer viruses to an outdated operating system that blocked one juror’s access to Zoom altogether.

How to implement voir dire to select a jury faces serious hurdles as well. Virtual voir dire poses serious problems with jurors being less than completely attentive to the process, with no way to know what could be impacting a juror’s attention. Furthermore, virtual voir dire denies attorneys the opportunity to get close enough to observe any biases jurors may express non-verbally. Conducting voir dire in-person also provides challenges as courts enforce safety procedures like screening prospective jurors for pre-existing health conditions, reconfiguring court rooms to allow social distancing, and the use of masks. While these safety procedures have shown promise in blocking the virus from penetrating institutions like the NBA bubble, they are potentially blocking an attorney’s ability to evaluate a juror’s responses which is essential to selecting a representative jury panel.

Allowing potential jurors to avoid service due to health conditions that would not ordinarily preclude service will likely impair the size of the panel because anyone who shows signs of discomfort could be excused from serving. Most jury panels are made up of jurors over 52 and many over 65 years old. How do we expect these older jurors to respond to notice of jury duty when they are experiencing a fear of exposure to the virus? Furthermore, many courtrooms are not designed to accommodate social distancing, so jury selection is being moved to auditoriums, civic centers, gymnasiums and even churches. This presents a challenge when some jurors may have difficulty hearing an attorney’s questions and other jurors’ responses. In Hennepin County, Minnesota (Minneapolis), the state determined that only (5) courtrooms had appropriate spacing for the trials, including all lawyers, witnesses, and court personnel. With respect to the cases tried in Hennepin County, the state is flipping the courtroom so that the gallery is being used for jury selection which allows the jurors to be spaced out at appropriate distances. The Federal court jury trial system is less impacted than state courts. Federal jury trials typically require six jurors with possible alternates while many states require 12 jurors and sometimes as many as three alternates. Therefore, the number of jurors summoned for a federal trial is significantly smaller than the veniremen summoned in state courts. An additional advantage is that many of the federal courts are newer and much more spacious while many of our state courts are old with small courtrooms and limited jury boxes and seating. In fact, it has been reported that in Massachusetts’s state courts, judges are telling counsel, “you are getting a jury of six and not 12 and is not even asking counsel to stipulate to the smaller jury.”

With respect to the use of masks, concealing facial expressions is problematic. Often during voir dire, a facial expression of a prospective juror in response to a question asked of another juror will cause an attorney to ask that juror to respond to the previously asked question as well. This issue even came up at the confirmation hearing of recent Supreme Court Justice Amy Coney Barrett. Many were concerned about not being able to see her facial expressions during her confirmation hearing.

The Trial

Michigan trial courts conducted more than 1.3 million hours of court proceedings via Zoom by the end of September 2020. The quick transition to digital dependence caused by the pandemic has its pitfalls but it has also provided us with moments of humor. During the onset of Supreme Court oral arguments in May, as Chief Justice Roberts reprimanded the court for ringing cellphones and then he was interrupted by the sound of a toilet flushing. Although the official transcript does not make note of the flush, I think we can all agree, res ipsa loquitur, “the thing speaks for itself.” However, toilet flushing is the least of our sticky situations as we attempt to digitize the legal system.

COVID-19 driven modifications present an overwhelming amount of challenges to the actual trial. Anyone who has experienced video conversations through FaceTime knows that there is no replacement for human interaction. Non-verbal communication is lost almost entirely on videoconferencing platforms like Zoom. The Social Psychology of Telecommunications provides that useful information like subtle eye movements and other non-verbal communication cues are not likely to be picked up on video. And where a typical Zoom call frames the individual from the chest up, jurors cannot see any body language communicated by the lower half of the body.  This severely distorts a juror’s ability to properly observe witnesses, their testimony, and evidence. As the sole judges of witness credibility, it is imperative that jurors be able to view witnesses and other jurors body language and non-verbal cues in their assessment.

Factors such as video quality, lighting, and angles could trigger biases in jurors as well. Witnesses speaking on behalf of wealthy defendants could appear more attractive and sincere as they sit in front of extravagant backgrounds and have superior video quality. We cannot even guarantee that witness testimony is candid in a virtual setting. What occurs off camera cannot be seen which could impact a witness’s testimony.

Additionally, jurors cannot possibly remain impartial when their ability, or lack thereof, to properly evaluate evidence is compromised by the limitations of videoconferencing. Erie County, New York (Buffalo), has resumed in-person trials & voir dire. They have two designated courtrooms – one for evidence presentation and one for a juror breakroom. In these courthouses, no other court business shall be conducted during trial. Attorneys may not approach witnesses – all evidence is handed to the court officer, then court officer displays evidence to the jury. Evidence does not always come in the form of a document, or in a form that can be shared via a file share program. Thus, where digital distribution or in-person display does not equate to physical interaction, the impact of evidence on jurors is certainly diminished.

Jury impartiality continues to be at issue even as some courts move on to conducting in-person trials. In Hennepin County, Minnesota (Minneapolis), once the jury is selected, the jurors are then spread across the gallery. Only one attorney is allowed at each table along with client. Before a witness testifies, they take down their mask to show the jury their face but then wear the mask the remaining time. From that point forward the trial is conducted in traditional fashion. The use of face masks and social distancing protocol present similar challenges. Jurors are still unable to observe witness facial expressions and subtle nuances in their demeanor to make a proper assessment of credibility.

Jury Deliberations 

Jury secrecy is essential to the work of juries to protect the integrity of deliberations and reassure open discussions. Thus, any modification to this sacred process poses a serious question of whether the trial by jury has been impaired to a level it has violated this constitutional right. As courts are forced to modify several functions of the jury trial in light of a global health emergency, this includes jury deliberations. When conducted virtually, how do we ensure all jurors are able to participate in the deliberations without monitoring their deliberations? If one of the other jurors cannot hear or see their fellow jurors, is it another juror who fixes the computer glitch or do they call someone else? Who exactly do they call? These questions must be approached very carefully to guarantee that jury deliberations do indeed remain secret.

A recent study conducted by Dubin Research Consulting presents that 74% of potential jurors experience feelings of anxiety about being in close physical proximity with others. Courts that have resumed in-person trials attempt to relieve this concern by conducting jury deliberations in the larger courtroom instead of the smaller rooms actually designated for deliberations. In King County (Seattle), the court has been holding trials in a conference center rented in a nearby town. Deliberations take place in large conference rooms separate from the rooms in which the trials are held. Nevertheless, jurors are still likely to feel some level of anxiety, interrupting their decision-making ability, during a very crucial moment of the jury trial process.

We are undeniably fortunate that advancements in technology have enabled our justice system to persist amidst a global pandemic. But we cannot ignore the consequences and limitations. In the face of the pandemic, courts in Johnson County, Kansas organized the Ad Hoc Jury Trial Task Force and court issued a 30-page order with the task forces suggestions for conducting jury trials under pandemic conditions. Many states have followed suit and although these challenges are daunting, special bench bar committees and experts continue to evaluate and develop alternatives methods in an effort to safeguard a sacred right unique to our country -- a right to trial by jury. However, even in taking all the necessary precautions, some courts have found it impossible to preserve the rights of litigants while also ensuring safety. In the U.S. District Court of Nebraska’s November 2nd order regarding the postponement of jury trials, the court stated:

The resurgence of the COVID-19 pandemic in the District of Nebraska, and the increased community transmission of that disease, have again reached the point at which the Court's proceedings are affected. . .. In that environment, despite the physical distancing  measures in place, the Court is presently unable to draw a venire, select a jury, and try a case to  completion in a manner consistent with the right to a fair cross-section of the community or due process for the litigants. And it is the Court's responsibility, as a careful steward of public safety, not to unnecessarily or unduly endanger its own personnel, other participants in the judicial process, or members of the community.

(See General Order 2020-14). Since the founding of the United States, our courts have considered the intersection of the legal system and public health. The founders had ample experience with smallpox, yellow fever, cholera, typhoid, and malaria. Covid-19 is just another obstacle in the long line of illnesses which have threatened American Jurisprudence. At this moment in time, it is unclear what the next step will be in preserving the sanctity of the American Jury trial. But one thing is guaranteed, the American Jurisprudence system will persevere and prevail, so that the next time we are faced with such an enemy, we will be ready. 

Author Bios

Daniel F. Church

For more than 30 years, Daniel F. Church has been representing local, regional, and national companies in civil litigation, both in federal and state courts. He represents defendants in class action suits, as well as in cases involving toxic torts, bad faith, railroad, premises liability, professional liability, product liability and general tort claims. He has tried more than 40 cases before juries, many involving damage claims in excess of one million dollars and has represented clients in civil trials in 15 states. Mr. Church was selected as one of the "Best Lawyers in America" by his peers and as a Super Lawyer in the Kansas City area.  Mr. Church is currently on the Board of Directors for the Professional Liability Defense Federation.

Shawn A. Meyer

Shawn A. Meyer went to Chicago Kent College of Law and earned his Juris Doctorate Degree with a certificate in Business Law. Shawn currently resides in Kansas City, Missouri where he works as a Civil Litigation attorney at Morrow Willnauer Church, LLC. - (Morrow Willnauer Church, L.L.C.)
 

Unauthorized Occupants: What Status Do They Hold in Premises Liability Claims?

(NOVEMBER 30, 2020) - When a lawsuit arises from an injury that occurs as a result of a dangerous condition on another’s property, this type of claim is called “premises liability.”1 Normally, those in possession or control of real property (aka a “possessor”) owe a duty of care to individuals who access such property. In all but a handful of states, this duty is ultimately dependent on the plaintiff's status on the land. In these jurisdictions, generally the only duty possessors owe to undiscovered trespassers is to refrain from “willful and wanton conduct”2 or “intentional misconduct.”3 Absent specific evidence, this is a very difficult standard for plaintiffs to overcome. 

Oftentimes, however, it is not always clear under what circumstances an injured party may be considered a trespasser; particularly when the injury occurs at an apartment complex. Notably, it is unclear what status a plaintiff holds when he/she is injured while living at – or otherwise occupying – an apartment without authorization from the landlord. Individuals who fall into this category are frequently referred to as “unauthorized occupants.”

The U.S. Department of Housing and Urban Development defines an “Unauthorized Occupant” as “a person who, with the consent of a tenant, is staying in the unit, but is not listed on the lease documents or approved by the owner to dwell in the unit.”4 An example of an unauthorized occupant would be a tenant’s significant-other who moves into the apartment without the consent of the landlord. Another example would be a person paying or otherwise compensating a tenant to “rent out” all or part of an apartment without the landlord’s knowledge or permission.

Conversely, the U.S. Department of Housing and Urban Development defines a “guest” as “a person temporarily staying in a unit with the consent of the tenant or another member of the household who has express or implied authority to consent on behalf of the tenant.”5 Although landlords do not expressly invite guests onto their property, it is generally accepted that guests receive an “implicit” invitation as it should reasonably be expected that tenants may invite people to visit or temporarily stay at their apartment.6 As a result, in nearly all jurisdictions, social guests are afforded the same duty as tenants and other invitees.

However, logic dictates under most circumstances that an unauthorized occupant cannot reasonably be said to have received an implied invitation from the landlord. This is particularly true in cases where the unauthorized occupant fails to benefit the landlord or where his or her occupancy violates a law. Nonetheless, because an unauthorized occupant receives an express invitation from the tenant, these individuals do not always meet the threshold for most state’s common law and statutory definitions of a trespasser.   

Consider the state of Florida for example. There, the standard jury instruction defines an “invitee or invited licensee” as “[a] person [who] is invited on land or premises of another when he enters or remains there at the invitation of the owner or possessor.”7 Here, because the invitation must come from the possessor, an unauthorized occupant should not be held to this status. However, Florida Statute also defines an “undiscovered trespasser” in pertinent part as “a person who enters property without invitation, either express or implied…”8 Further, the statute defines the term “invitation” as meaning “that the visitor entering the premises has an objectively reasonable belief that he or she has been invited or is otherwise welcome on that portion of the real property where injury occurs.” Notably, as the statute is silent as to whom the invitation must come from, the unauthorized occupant’s status arguably fails to meet the legal standard for a trespasser. While it is tempting to merely dismiss this ambiguity as “an issue of fact” (and issues of fact may indeed exist), it is clear that the ultimate determination as to whom the invitation must come from does not “depend on the probative value of any evidence,” and thus is a pure question of law that should be determined by the court.9

However, while this question of law has arguably never been directly answered by the courts, there are nonetheless strong arguments that can be made to both the judge and jury for why an unauthorized occupant must be held to the status of a trespasser. The first and most important argument is that the plaintiff’s presence was a direct violation of the express terms of the lawful occupant’s lease agreement. Most residential lease agreements have terms that forbid unidentified individuals from occupying the apartment absent written consent from the landlord. Additionally, many lease agreements have restrictions or required disclosures regarding the tenant’s criminal record. To the extent the plaintiff has a criminal record – even a misdemeanor – the defense may argue that such conviction(s) disqualify him or her as a lawful occupant.

Next, it should be determined if the plaintiff’s presence violated any local, state or federal laws. Most notably, when tenants are receiving federally subsidized rental assistance – which is oftentimes calculated by household income - there are additional laws and regulations that are triggered.  Most notably, an unauthorized occupant’s presence appears to be a clear violation of Section 42 of the Internal Revenue Code, as well as the occupancy guidelines for The Low-Income Housing Tax Credit (“LIHTC”)  and United States Department of Housing and Urban Development (“HUD”) programs. Additionally, to the extent the unauthorized occupant is employed or receiving independent subsidies, this unreported household income could easily disqualify the tenant from his or her rental assistance, potentially making the tenant and unauthorized occupant guilty of fraud.

Finally, it should be determined if the unauthorized occupant’s presence on the property would be detrimental to the landlord by exposing it to financial or administrative liability. For example, if the property is an affordable housing project, the defense may argue that the unauthorized occupant’s presence made the landlord noncompliant with federal law, potentially resulting in fines, loss of tax credits or an inability to participate in future affordable projects.

In cases where there is no issue of fact that the plaintiff was an unauthorized occupant, defense counsel can and should move for summary judgement. In doing so, rather than focusing on the unauthorized occupant being a per se trespasser, it is probably easier to establish that he/she cannot reasonably be held to the status of an invitee or licensee. Specifically, it will be necessary to provide authority that makes it clear that any implied invitation must come from the possessor and not the tenant. Depending on the circumstances of the case, as well as the available case law in your state, defense counsel may consider citing section 52 of The Restatement (Third) of Torts: Liability for Physical and Emotional Harm. Notably, the Restatement sets forth a unique standard referred to as “flagrant” trespassers. While the Restatement does not attempt to fully define a flagrant trespasser, it explains that the "core distinction between trespassers is the extent to which the trespass is offensive to the rights of the land possessor."10 Depending on how inflammatory the unauthorized occupancy is, the Restatement may be enough to convince the court that he/she is a trespasser as a matter of law.

Whether the issue is ultimately determined dispositively by a judge, or at trial by a jury, if a possessor can establish that the plaintiff was an unauthorized occupant of the premises, it has a good chance of substantially reducing the duty of care owed to such individual. - (Brooks A. Saible, Baumann, Gant & Keeley, P.A.)

 1 Bovis v. 7-Eleven, Inc., 505 So .2d 661, 662 (Fla. 5th DCA 1987); see also, Hix v. Billen, 284 So.2d 209, 210 (Fla.1973) ("There is a distinction to be noted between active, personal negligence on the part of a landowner and that negligence which is based upon a negligent condition of the premises.").

3 See § 768.075(3)(a)(3), Florida Statutes

4 U.S. Department of Housing and Urban Development Handbook 4350.3: Occupancy Requirement of Subsidized Multifamily Housing Programs.

5 Id.

6 Wood v. Camp, 284 So.2d 691 (Fla. 1973). 

7 Fla. Std. Jury Instr. (Civ.) 401.16(a).

8 § 768.075(3)(a)(3), Florida Statutes

 
 

Tort Reform Louisiana House Bill 57

(JANUARY 19, 2021) - On January 1, 2021, Louisiana’s Tort Reform legislation which was signed into law by Governor John Bell Edwards, went into effect and applies to causes of action arising after that date. The new laws cover 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 Attorneys at Law) 
 

Righi Fitch Law Group Is Excited To Announce The Addition Of Shawn Cummings To Our Trial Lawyer Team

(JANUARY 20, 2021) - Righi Fitch Law Group is excited to announce the addition of Shawn Cummings to our trial lawyer team. Shawn will be working at our New Mexico location. Shawn's New Mexico roots run deep, with a family history in New Mexico over several generations, well before New Mexico was even a state.

Righi Fitch Law Group is excited to announce the addition of Shawn Cummings to our trial lawyer team. Shawn will be working at our New Mexico location. Shawn's New Mexico roots run deep, with a family history in New Mexico over several generations, well before New Mexico was even a state.

In Shawn's spare time, he enjoys spending time with his two sons at their collective sporting events and is also an avid runner. He has participated in both marathons and ultra-marathons throughout the country in places such as Boston, Seattle, Phoenix, El Paso, San Francisco, Las Vegas, Salt Lake City, Valles Caldera, and Albuquerque.

Shawn is excited to join the firm and its ranks of seasoned trial lawyers.  He joined the Righi Fitch team because of the firm's strong reputation for trial work and their innovative approach to resolving cases. 

We are excited to have Shawn on board with our team and we look forward to watching excel with our firm.

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. – (Righi Fitch Law Group)
 

New Associate Gary D. Baker, Jr. Joins Gallagher Sharp LLP

(JANUARY 20, 2021) - The law firm of Gallagher Sharp LLP is pleased to announce that Gary D. Baker, Jr., has joined the firm as an Associate.

Mr. Baker is a member of firm’s Business & Employment and Product Liability Practice Groups. He focuses on representing state fund and self-insured employers before the Industrial Commission of Ohio in workers’ compensation matters. He also defends manufacturers against claims alleging product liability. Gary is a former Law Clerk with the Cleveland Metropolitan Bar Association’s Certified Grievance Committee.

Mr. Baker received his law degree, cum laude, from Cleveland-Marshall College of Law in 2020, where he participated on the Mock Trial Team and served as Corresponding Secretary for the Black Law Student Association.  He received his undergraduate degree from Case Western Reserve University in 2017. Mr. Baker is a member of the Ohio State and Cleveland Metropolitan Bar Associations. 

Gallagher Sharp is a trial and business practice firm focused on the defense of civil claims and lawsuits for corporations, insurance companies and their policyholders. The firm's areas of experience include general litigation, business and employment, insurance, transportation, professional liability, product liability, mass torts, and appellate law.  Founded in 1912, the firm’s main office is located at 1215 Superior Avenue, 7th Floor, and has offices in Columbus, Toledo, and Detroit, Michigan. 

For further information, please contact Jeanne Kostelnik, Director of Client Services, at 216-522-1082. – (Gallagher Sharp LLP)
 
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