Trying a Case During The COVID-19 Outbreak

Trying a Case During The COVID-19 Outbreak

A Queens Jury Perseveres In The Face Of An Escalating Global Pandemic

By John A. Blyth, Esq. How do you conduct a fair and effective jury trial in the midst of a deadly virus outbreak? You will not find an answer in any trial handbook or the rules of evidence. There is no Appellate Division decision or Pattern Jury Charge to provide guidance. Your colleagues and fellow trial lawyers will not have the answer either. During the course of a recent weeklong trial, I learned that the answer hinges on the collective effort of a careful and determined Judge, a competent court staff, a committed jury, and to remain unwavering in the pursuit of a successful verdict for my client. If any link in this chain fails, the trial collapses and justice is not served. Jury trials demand more from a trial lawyer than any other aspect of litigation. While each case presents its own set of unique challenges and pressures, one constant of trial practice is the intense, sustained mental exertion on the practitioner. The pre-trial phase is marked with obsessive preparation requiring long hours and complete absorption of every detail of your case. It can be difficult to remain undistracted, retain and categorize the facts of your case, and mitigate other stressors inherent in trial work. The trial itself, while always exhilarating, requires the lawyer to be hyper-focused, alert, and prepared to make critical, on the spot decisions. While this last trial demanded the same tireless, intense preparation needed to win any other courtroom battle, there was a wildcard: COVID-19. Despite this unexpected and unprecedented situation, it is crucial to remain focused on what matters: handling your case the right way for your client. The pressure of delivering for any client is intense, but in this situation, there were added concerns:

• What if the courts close?
• What if the jurors get sick, or decide not to show up due to understandable concerns about their health or the health of their families?
• If the case was going well and ends in a mistrial, will it be as strong the next time we try it?

As the coronavirus pandemic continues to impact nearly every aspect of daily life, the concerns about how it would affect this trial mounted on an almost daily basis. The following story explains what happened each day in a trial over the course of the week as the COVID-19 was wreaking havoc on the way we live. Background: My case involved a 2016 accident in which my client was struck by a motor vehicle as he was exiting a city bus in Queens.  Plaintiff commenced suit in Queens County Supreme Court against the bus company and the driver who struck him. On Friday, March 6, 2020, counsel for Plaintiff and the two Defendants appeared in the Court’s Trial Scheduling Part and were assigned to a trial judge for a determination on a pre-trial motion in advance of jury selection.  There was general chatter and concern about COVID-19 in the Trial Scheduling Part. Monday – March 9, 2020:  Counsel for the parties appeared for a pre-trial conference before our assigned judge to discuss the upcoming liability trial, which we anticipated could be concluded by the end of the week. Before discussing any substantive issues, the Court addressed the ongoing COVID-19 concerns that had escalated over the weekend. The judge clearly establishes that the safety and welfare of all jurors, lawyers and staff during trial is the first priority. The Judge also tells us that he would be accommodating given the dire news about the virus that changes by the hour. Outside of the Courtroom: “Italy is shuttering the entire country. The virus has spread to 43 states. Daily briefing starts at the White House. Dr. Anthony Fauci says we must move to “mitigation.” Washington State becomes our new virus epicenter. The term “Social Distancing” enters our lexicon….” I began asking myself “Is anyone going to show up for jury duty tomorrow?” The prospective jurors hear the same news that I had, and I had serious doubts regarding the feasibility of picking a jury in this uncertain climate. Would I be facing a panel of anxious, nervous, and potentially infected individuals who would be angry at my client and I if they were selected for this case? Tuesday – March 10, 2020:  The parties appear for jury selection and were advised that 45 people had reported for jury service that morning and would soon be brought to the courtroom. While the lawyers were eager to begin voir dire, the Judge addressed the group first, giving assurances that the safety of all will be maintained. At 4:15pm, after a few panels were questioned, the lawyers had selected our six jurors and two alternates. The jury was comprised of a diverse group of professionals and students – from a math teacher, to a software engineering student, a small business owner, a public school administrator, and a young woman who had just completed her degree in social work. It was your typical Queens jury, made up of hardworking, everyday people. While I was pleased with the panel, the question about whether they would all report back the following morning could not be ignored. I was also concerned that an incomplete jury would require picking a new jury and cause delays to my client’s case. I appreciated the Judge’s commitment to forge ahead, with caution, however, that the Court’s doors could shut at a moment’s notice. Out in the real world: Governor Cuomo announces a “containment ring” of a one mile radius area in New Rochelle, NY. We hear of ominous “super spreaders.” There are 173 cases of Coronavirus in New York State up from 31 the day before. Colleges across the country close for the year and move to video learning. Cruise ships and airlines cancellations skyrocket. The stock markets are tanking. Schools across the country are closing. On TV, we are getting very detailed hand washing instructions. Wednesday – March 11, 2020:  All jurors report for duty by 10:00 a.m. clearly ready to get to work. I am impressed and relieved since this by itself seemed like a major accomplishment. I give my opening statement, followed by my two adversaries, and the first witness takes the stand. My client testified after lunch and did exceptionally well during the cross examination by the two competent attorneys for the defense. The day concluded at 4:30 p.m. after a 45-minute reading of deposition testimony (a painful experience for everyone). The Judge’s motion day was Thursday, so the jury is instructed to return to court on Friday. Out in the real world: “The NBA, NHL, and MLB seasons are postponed indefinitely. The NCAA tournament is canceled. Governors of Michigan and Massachusetts declare state emergencies. Western Europe becomes the new hot spot. Restrictions on the size of groups go into effect. Cancellation becomes the word of the day. St. Patrick’s Day parades everywhere are canceled.” Thursday – March 12, 2020:   The lawyers appear in Court in the afternoon for the charge conference. The uncertainties regarding whether the jury would show up again given the increasing COVID-19 panic. The message was clear at that point: Work from home, if you can. Stay home. Avoid everyone. Don’t visit nursing homes. People are hoarding toilet paper and just about everything else. More new coronavirus cases every day. Friday – March 13, 2020:   The last day of the trial. Like clockwork, all members of jury arrive on time. They continue to provide their undivided attention to the case before them, somehow leaving the distractions of the outside world at the doors of the Courthouse. Counsel gives their summations, the Judge charges the jury, and deliberations begin at 12:35 p.m. While my client and I were sitting outside during the lunch recess, a colleague circulates a firm-wide email with a memo from NYS Chief Administrative Judge Lawrence K. Marks. Effective Monday, March 16, all civil jury trials in New York that have not been started will be postponed until further notice. I turned to my client and said, “we need a verdict today.” At 2:45 p.m., the clerk announced that deliberations were complete. The jury foreman reported the verdict: Defendants 100% at fault; Plaintiff 0% at fault. A unanimous verdict in my client’s favor. While there would be more work to do at a future damages trial, I was thrilled for my client. What was even more gratifying was that COVID-19 – an unprecedented public health crisis wreaking havoc on all facets of life, government, and business – was not powerful enough to disrupt my client’s right to a trial by a jury of his peers. The trial process is emotionally draining for any party, but in this case my client was burdened by the real prospect that COVID-19 could determine the fate of his trial, not the jury. Before disbanding the jury, the Judge emotionally thanks the panel for their service in the pursuit of justice. The attorneys reiterate their appreciation for the jurors’ fortitude and commitment in light of the stresses and unknowns in the era of the Coronavirus. Outside: Everywhere in the world the contagion spreads. Life as we know it is being upended is so many unexpected ways. Hourly wage-earners, especially those in the hospitality industry, are getting crushed. The economy is headed for a recession. The Final Word Despite the chaos, the unknowns, and the dangers, everyone showed up every day… on time… with no excuses. The jury honored their commitment to my client’s case by listening intently to all of the evidence and following the Court’s instructions. I was so impressed with the way they handled this situation given the growing public panic. Their sacrifice became even clearer when I thought about all of the ways COVID-19 was disrupting my life, and the lives of my family, friends, and colleagues. These eight individuals went above and beyond to carry out their civic duty. On behalf of my client, I sincerely thank the Judge, the Court Officers and staff members, opposing counsel, and the eight members of the jury for their service and professionalism. Ultimately, the pursuit of justice will not stop for any of our clients here at Hach & Rose, LLP. We are in full support of all of the measures the Courts and others have taken to mitigate the spread of this novel coronavirus, and we know that the health and safety of everyone in our community and beyond comes first. We will continue to fight for our clients in the ways we can during this challenging time. This largely means working remotely, teleconferencing for most interactions that once were performed face-to-face, and finding creative solutions to problems during this time. We won’t stop fighting for those who depend on us, and together, we are confident that we’ll get through this.