Attorneys Marc Lopez and Jamison Allen recently tried a personal injury case in what may have been the first civil jury trial in central Indiana—if not the entire State—since COVID-19 restrictions started back in March of 2020. Despite the unusual, socially-distant conditions, the two won a big victory at trial.
Every experience, however, represents a chance to learn something new. With the benefit of hindsight and reflection, Attorneys Lopez and Allen are prepared to make some adjustments for their next trial. Here are a few of the things they learned from trying a case during a global pandemic.
Plan ahead. Use the final pre-trial conference to make sure everyone’s on the same page regarding jury selection. In addition to normal voir dire questions, you’ll have to cover coronavirus topics as well. Will this mean more time is allotted for jury selection? Is it possible to have an extra alternate juror, owing to general and obvious health concerns?
Think about exhibits as well. Does the court want counsel to be handing things back-and-forth? If so, you might want to make sure you incorporate hand sanitizer into your courtroom routine. If hand sanitizer isn’t going to be required by the court, you might want to bring some anyway.
Be friendly. Court staff have a lot of power. If you run into a logistical issue at trial, who are you going to be relying on to help fix it? Court staff. Making friends is never a bad strategy, but it becomes even more important in a public health crisis, when seemingly small problems can have exaggerated consequences.
Adapt. Use your normal approach to a trial as a starting point. Ask yourself, Do coronavirus conditions offer any strategic advantages? Maybe you want to exclude medical personnel from the jury, or something about the pandemic provides you with a relevant analogy for your closing argument.
See if the judge is open to any sort of limited, maskless presentation, just so the jury can see your face and make a connection. You might want to try this during jury selection, or maybe during opening or closing arguments.
Also, prepare yourself for a different set-up than usual. The jurors can’t maintain a safe social distance if they’re all crammed in the jury box. Because of this, the jury might be spread throughout the gallery or arranged in some other way. Relocating the audience changes the dynamics of a performance, especially when the technological set-up assumes the jury will be seated in the jury box.
Make an effort to connect. Some jurors are bound to be more anxious than others, and you want to try and put everyone at ease. Consider adjusting the normal questions that you ask prospective jurors, and try to make the process more open. Acknowledge the unusual circumstances, and try to use them to create a sense of community, rather than a sense of social isolation.
When it comes to masks, keep in mind that everyone is outside of their comfort zone right now. There’s a very good chance that the jurors want to see your face just as much as you’d like to be able to see theirs. If someone wants to use the masks to make a political issue, be prepared to gently redirect them.
Pay attention to body language. It’s natural that you want to connect with and feel understood by the jury. If your face is covered, this may lead you to step closer to the jurors as you’re speaking. If somebody recoils at your approach or otherwise indicates that you’re making them uncomfortable, be ready to back off and recalibrate. Always consider how you’ve positioned your body and the way in which other people are relating to it.
Emphasize visual evidence. Masks don’t just hide facial expressions—they also muffle voices. It’s objectively harder to understand someone who’s wearing a mask. If you know that your ability to communicate through speech is going to be compromised, try to compensate with memorable visual aids. Demonstrative exhibits are especially important when you know for a fact that not everything you say is getting through to the jury.
Provide photos of witnesses. You want the jury to be able to see the witnesses’ faces, but this remains a challenge when everyone is masked up. Even video deposition testimony may have been recorded while wearing a mask. If possible, consider the possibility of providing and displaying photos of the people who are testifying, just so the jurors can experience something more than a hairdo and a muffled voice.
Practice with a mask. As any athlete will tell you, you need to prepare in the conditions in which you’re going to perform. Practice your courtroom presentations in a mask, and figure out what kind of face covering works best for you. During your rehearsals, have someone listen to you. Their feedback can be helpful in pointing out where you need to slow down or enunciate more than usual.
Remain flexible. Don’t go in with any fixed assumptions about how the courtroom will be set up or how things are going to proceed. The technology might be different than you expected. You might need to bring in extra speakers to make audio evidence available to the jury. You might need an extension cord because of the way things have been arranged.
Be yourself. Most importantly, try not to let all of the pandemic-related variables throw you off your game. You signed up for extra preparation when you decided to go to law school. You’re a trial attorney. You know how to do this. Moreover, whatever challenges you’re facing, your opponent is facing them too.
COMING SOON: Attorneys Lopez and Allen will be presenting at an Indianapolis Bar Association CLE webinar on September 30 to discuss and reflect on the experience of trying a case during these strange and challenging times. Attorney Donna Bays of the Bays Law Firm and the Honorable John Joven of the Marion County Superior Court are also scheduled to appear. Anyone who’s interested should check it out!
*Body language coach Lisa Mitchell can be reached at 260-615-8016 and at www.powerbodylanguage.com.