Litigants must relearn their post-Covid jury trial skills
Those who were fortunate – or unlucky – to learn how to judge cases in front of a jury during the Covid-19 era undoubtedly thinks that a jury trial is an impersonal, rather one-dimensional experience.
Prior to Covid-19, jury trials were highly interactive and the art of questioning and cross-examining witnesses was fully on display under the watchful eyes of a jury tasked with deciding the credibility of the parties and a judge acting as bench referee. One of the best tools in a litigator’s arsenal was to feel comfortable in a courtroom even if you had to think on your feet. This is perhaps the most important difference and it is 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 twisted the traditional jury trial, suggesting where we may need to go next.
What changed ?
Some courts may still apply these precautions, but during the pandemic, jury selection (voir dire) was conducted offsite and with smaller pools due to social distancing requirements. The jury gallery was surrounded by Plexiglas® walls where the jurors may have appeared virtually and everyone in the courtroom wore a protective plastic mask or face shield that could mist up at critical times. The judge, too, was probably behind protective barriers.
Lawyers interacted with witnesses, judges or jurors from a distance of at least six feet and were most likely at the back of the courtroom. Lawyers were not allowed to approach the bench and may have had to wear headsets to communicate with the bench. Witnesses were more likely to appear remotely via video than live. The demonstrative exhibits have probably been reduced, simplified or modified in some other way.
Additionally, court staff, including court reporters, may have appeared remotely, subjecting them to the vagaries of technology and Internet signals.
While Covid-19 may be far from over, we can remember the pre-Covid-19 jury model and begin to relearn our way in the courtroom. This article will discuss “forward practice” by going back to the basics of how to judge a jury case. We note that every jury trial is different; these are general guidelines and each jury trial must be evaluated and modified to suit the circumstances presented.
Preparation, planning and credibility
Covid-19 or not, there is no substitute for preparation and thorough knowledge of the evidence before entering the courtroom.
Before trial, lawyers must ensure that all evidence is authenticated and in admissible form. Choose your themes and tell your story consistently throughout all phases of the trial. Learn about the technology available to the court and practice ahead of time – tailor your case to the technology you will be using.
The Defense Table
Make sure you have a sympathetic and identifiable company representative seated at the table throughout the trial, from jury selection to verdict. Pay particular attention to the personalization and humanization of the corporate testimony as the face of the company in the flesh; this is essential because they will be close to the jurors and watched very carefully.
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Pay close attention to important details and prepare in limine motions (requesting that certain evidence be ruled inadmissible) to challenge any expert testimony (Daubert challenges).
Refine the questions to be decided by the jury. Prepare your presentation to the jury before knowing which questions the jury will have to answer and structure your file accordingly.
Know what characteristics of jurors will help your presentation of the facts before entering the courtroom.
Be aware that a fair jury is always optimal, but may not be the number one choice. Choose a jury that you think can be predisposed in favor of your client and can, at least, be open-minded. Incorporate your business theory into your questioning to assess predisposition.
Establish your credibility from the start and challenge the other party to be credible as well; report 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 they won’t. Bring a human element to the defense and foreshadow how it will manifest.
Case of the chief applicant
If you are representing the defense, always walk into the courtroom knowing the case better than the plaintiff’s lawyer, the judge, and any experts — and let him see himself.
Start and end your cross-examination loud and stir up emotion where it helps. Never ask a question you don’t know the answer to. Be prepared to cross-examine key witnesses and experts.
Case of the Chief Defendant
Prepare your customers carefully before putting them on the booth. Now more than ever, it is important to show the customer that they are reasonable and empathetic. If you can make concessions, make them.
Call on your experts to define anchor figures on damage.
This is where you passionately argue the evidence that supports your case theory. As you present your argument, don’t ignore what is hurting your case, explain it.
Guide the jury through the jury’s instructions and the evidence, especially the damages you are seeking. Help the jury find the reason for your proposed verdict. End on a positive note, but be empathetic as juries can be nervous and suspicious given the difficult times of Covid-19.
The pandemic will end – or at least be more manageable from a health standpoint – someday, and so will the courtroom guidelines. But in the meantime, remember that you need to wear two legal hats: litigation lawyer and adhering to pandemic guidelines.
This column does not necessarily reflect the opinion of the Bureau of National Affairs, Inc. or its owners.
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Stratton Horres and Karen L. Bashor are Wilson Elser’s partners in the Complex Tort & General Casualty practice. They focus on crisis management and dealing with high exposure catastrophic cases for their clients.