Those who have had the fortune—or misfortune—of learning to try cases before a jury in the time of Covid-19 no doubt believe that a jury trial is an impersonal, rather one-dimensional experience.
Pre-Covid-19, jury trials were highly interactive and the art of witness examination and cross-examination was on full display under the watchful eyes of a jury charged with deciding the credibility of the parties and a judge acting as a referee from the bench. One of the best tools in a trial lawyer’s arsenal was feeling comfortable in a courtroom setting even though you had to think on your feet. This is perhaps the single most important difference—and it’s a big one.
Many people would be surprised at the number of jury trials completed in the past 18 months. Here’s a look at how Covid-19 distorted the traditional jury trial, suggesting where we may need to go next.
Some courts may still have these precautions in effect, but during the pandemic, jury selection (voir dire) was conducted off-site and with smaller pools due to social distancing requirements. The jury box was surrounded by walls of Plexiglas® or jurors may have appeared virtually and everyone in the courtroom wore a mask or a plastic protective face shield that could fog up at critical moments. The judge, too, was likely behind protective barriers.
The lawyers interacted with witnesses, judges, or jurors from a distance of at least six feet, and were more likely at the back of the courtroom. The lawyers were restricted from approaching the bench and may have had to wear headphones to communicate with the bench. Witnesses were more likely to appear remotely by video than live. Demonstrative exhibits were likely scaled down, simplified, or altered in some other way.
In addition, court staff, including court reporters, may have appeared remotely, making them subject to the vagaries of technology and internet signals.
While Covid-19 may be far from over, we can recall the pre-Covid-19 jury model and begin to relearn our way around the courtroom. This article will address “practicing forward” by going back to the basics on how to try a jury case. We note that every jury trial is different; these are general guidelines and each jury trial should be evaluated and modified to fit the circumstance presented.
Preparation, Planning and Credibility
Covid-19 or not, there is no substitute for being prepared and thoroughly familiar with the evidence before you step into the courtroom.
In advance of trial, attorneys need to ensure all evidence is authenticated and in admissible form. Pick your themes and tell your story consistently throughout all phases of the trial. Find out what technology the court has available and practice with it beforehand—tailor your case to the technology you will use.
The Defense Table
Make sure you have a corporate representative who is likeable and relatable sitting at the table throughout the trial, from jury selection to verdict. Pay particular attention to personalizing and humanizing the corporate witness as the flesh-and-blood face of the company; this is critical as they will be in close proximity to the jurors and watched very carefully.
Be certain such witnesses are mindful of their significance whether on or off the record.
Pay close attention to the important details and prepare motions in limine (asking that certain evidence be found inadmissible) to dispute any expert testimony (Daubert challenges).
Narrow the issues for the jury to decide. Prepare your jury charge before so you know what questions the jury will be required to answer, and structure your case accordingly.
Voir Dire (French for “To Speak the Truth”)
Know what juror characteristics will favor your presentation of the facts before you enter the courtroom.
Be aware that a fair jury is always optimal, but may not be the number one choice. Pick a jury that you believe may be predisposed in your client’s favor and can, at the least, be open-minded. Incorporate your theory of the case into your questioning to gauge predisposition.
Establish credibility up-front and challenge the other side to be credible as well; point out their deviations.
Present your story in a straightforward manner and set the stage for what the jury can expect to see and not see. Set the stage for what the jury will hear and what it will not hear. Bring a human element to the defense and foreshadow how it will manifest.
Plaintiff’s Case in Chief
If you represent the defense, always go into the courtroom knowing the case better than the plaintiff’s counsel, the judge, and all the experts—and let it show.
Start and end strong on your cross-examination, and elicit emotion where it helps. Never ask a question to which you don’t know the answer. Be prepared to cross-examine key witnesses and experts.
Defendant’s Case in Chief
Prep your clients thoroughly before putting them on the stand. These days, more than ever, it is important to show the client as reasonable and empathetic. If you can make concessions, make them.
Use your experts to set anchoring numbers on damages.
This is where you argue passionately the evidence that supports your theory of the case. As you present your argument, don’t ignore what hurts your case—explain it.
Walk the jury through the jury instructions and the evidence, especially the damages you request be awarded. Help the jury find reason in your proposed verdict. End on a high note, but be empathetic as juries can be edgy and suspicious given the difficult times of Covid-19.
The pandemic will end—or at least be more manageable health-wise—one day and so will its courtroom guidelines. But in the meantime, remember that you need to wear two legal hats—trial lawyer and pandemic guidelines adherent.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Stratton Horres and Karen L. Bashor are partners with Wilson Elser in the Complex Tort & General Casualty practice. They focus on crisis management and handling catastrophic high-exposure cases for their clients.