The Verdict Is In…What an In-Person Trial Is Like During COVID-19

By Christian Nolan

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In the fall, all eyes were on the Bronx to see how a city ravaged by coronavirus and on the verge of a second wave would handle an attempt at normalcy with New York City’s first coronavirus-era civil jury trial.

The verdict – for a moment in time – was a win for the justice system.

As the city became the epicenter for the nation’s battle with coronavirus last spring, jury trials were shut down and the state court system turned to virtual courtrooms in order to function.

Essential matters like arraignments were handled virtually, and then gradually other less essential hearings resumed regionally in conjunction with the governor’s reopening plan.

Toward the end of that phased-in reopening came the return of grand juries and then jury trials, first in Upstate New York, followed by New York City.

Peter Kolp, a solo practitioner, represented the plaintiff in New York City’s first personal injury civil trial during the pandemic.

“It went better than I thought,” said Kolp. “I have to say I was really impressed with all the steps and precautions [the court system] took. They went above and beyond honestly. . . All it takes is one person who is sick, and everything gets shut down, so you grasp that the extreme cautions they took were for good reasons.”

By Nov. 16, due to the resurgence of coronavirus across the state, the court system ceased all new trials and grand juries again. At least for the time being, the return to in-person trials in New York City lasted just one month with a dozen cases tried to verdict.

Kolp said the court system went to great lengths and detail to keep people separated, such as making sure jurors didn’t walk by other people, using different elevators, and keeping people distanced in other rooms, such as where the jury deliberated.

“It was very well orchestrated I would say,” said Kolp.

Judge Doris Gonzalez, administrative judge for civil matters in the Bronx County Supreme Court, said a tremendous amount of planning went into the trial and she was determined to ensure no one caught coronavirus on her watch, even if it meant “micromanaging” the process.

“I’ve tried cases for 15 years, I knew exactly what attorneys were looking for at trial,” said Gonzalez.

The lawyers were invited to the courthouse ahead of time to get comfortable with the new layout. The largest courtroom was used, seats were separated and measured to maintain social distancing, hand sanitizer was available and plexiglass was used, including where the judge was seated, where the attorneys were and where a witness sits. The witness’ seat was cleaned before a new witness was seated.

Because the entire jury cannot be seated safely in the jury box, jurors were seated socially distanced in the back of the courtroom where the audience would typically sit under normal circumstances.

Gonzalez said the planning was meticulous including envisioning everything that could come up. For instance, where would an interpreter sit at a safe distance away from a client? The solution: in the middle of the jury box with a microphone.

An 85-foot television monitor with surround sound helped to engage jurors seated at the back of the courtroom, but both attorneys acknowledged that the distance added an odd dynamic. It made it more difficult to question witnesses because of the distance, and to do so the attorneys had to turn their backs on the jurors. It made it difficult to read the jurors when attorneys weren’t facing them.

Kolp said he made a couple jokes during voir dire but could not see the jurors, paused for a couple seconds to get a reaction, and got nothing. He said he learned what it’s like “to be a bad comedian.”

Daniel Cassidy, of the Law Offices of Daniel D. Cassidy, who represented the defendant in the Bronx, said lawyers are used to speaking loudly in the courtroom so that aspect of the jurors being distanced wasn’t as much of a problem for him, but admittedly he had trouble hearing the jurors. He said the courtroom has a 70-foot-high ceiling causing difficult acoustics and that was made even worse by mask-wearing and plexiglass. Microphones were needed throughout the courtroom.

Kolp and Cassidy agreed beforehand as to what evidence would be presented and how to share it safely with the jury. Documents were kept in plastic bags for each individual juror.

Cassidy opined that cases with extensive amounts of evidence, including documents, would be more difficult to try during the pandemic for this reason.

Both parties acknowledged that working with each other made life easier, as sidebars up close with the judge are not possible. Plus, the jury cannot easily leave the room and come back.

“If you’re willing to, without prejudicing your client’s case, there are ways to work around those minor bumps with the help of the court and an adversary willing to be professional and reasonable,” said Cassidy. “There are people that I wouldn’t want to try a case against in this environment.”

Gonzalez was pleased the trial went on without a hitch.

“When you see it come to fruition – all that hard work – it’s priceless,” she said.

Judge Deborah Kaplan, administrative judge for civil matters in the New York County Supreme Court, was equally diligent in planning for trials during the pandemic. She noted that the judges presided over voir dire in the civil trials, which is only common in the criminal courts in normal times. She believes this helped speed up the jury selection process.

Kaplan spoke to the jurors after their first trial. She said the feedback made their hard work worthwhile.

“I will never doubt the justice system again. Everything here was so completely fair,” one juror told her.

Other jurors told her they felt safe, they could tell there was an enormous amount of planning and were pleased there was no wasted time.

Cassidy, who received a defense verdict at the conclusion of his trial in the Bronx, urged his trial lawyer colleagues to be patient with the new process. Even when the pandemic subsides, Cassidy opines that the judicial system may never be the same again.

“I think even once we have a vaccine, I don’t think anyone’s going to feel comfortable in huge crowds again, or enough won’t be that it’ll become the norm again,” said Cassidy.

Gonzalez agrees that packed courtrooms may be a thing of the past, and she’s seen how fast the courts were forced to embrace modern technology through e-filing and virtual proceedings.

“I tell everybody here you have to be flexible,” said Gonzalez. “The way we did things in the past is not the way we can do them in the future.”

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