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.