A first-person account of a jury trial during COVID-19

The complaint was filed in October 2015. Our initial trial date was in August 2017. Two former human resources managers alleged they had been terminated in retaliation for initiating an I-9 audit that resulted in the loss of what they contended were key warehouse personnel. The warehouse manager, the plaintiffs claimed, was so upset at this that he convinced the vice president of human resources to terminate their employment.

The trial date was continued at least four separate times for a variety of reasons: a central witness not available; our original trial judge went out on extended leave; there were no available judges in Yolo County. Most recently, we stipulated to a brief continuance because one of the plaintiffs had a family issue. When we appeared on the application for this continuance in February 2019, the Yolo County judge said there would be no courtroom available for trial until April 2020. Because of the court closures resulting from COVID-19, we were later given yet another start date of October 2020, in the hopes that the court would be able to conduct civil jury trial at that time.

When the case began, we were both working at Epstein Becker & Green. After Matt began working at Seyfarth, we agreed to try the case together since we had worked it up together when we were first set to try the case in 2018. As the pretrial conference in early October approached, no one in either of our firms believed we would actually go forward with a jury trial on October 26, 2020. The news was that the pandemic was getting worse in California. Surely another continuance was on the horizon. No one in our firms had heard of any in-person civil jury trial going forward in Northern California during the pandemic.

But when we appeared at the trial readiness conference on October 5, the judge informed us that there was another civil trial set for October 19, but if that case did not go forward, we would, indeed, begin our jury trial on October 26 with Judge Samuel McAdam. We would be the first civil jury trial in Yolo County to begin during the pandemic. Plaintiffs' counsel asked if one of the plaintiffs, who at this time resided in Kansas, could appear remotely. We objected, and the judge who was conducting the trial readiness conference stated that Judge McAdam would have to rule on that issue. Accordingly, we were ordered to return on October 19, for a second trial readiness xonference.

On October 19, Judge McAdam informed us that the other trial set for October 19 did not go forward, so we would begin on October 26 as scheduled. He ordered that all parties and witnesses would appear in person  no remote appearances would be allowed. He assured us of various safety measures the court was taking, including disinfecting the courtroom regularly and placing plexiglass shields in front of the judge, the witness stand, and the jury box. Judge McAdam said he would wear a face shield, and the witnesses and attorneys would wear face shields during questioning, but could otherwise wear masks. The jurors would be encouraged to wear face shields, but would be allowed to wear masks if they chose to. We were informed that a jury pool of 400 was ordered for our case and another criminal trial. Hardships would be done over the phone two days before trial was scheduled to begin. Picking up on a gentle suggestion from Judge McAdam, Matt ordered 20 face shields for the jurors.

Afterwards, a colleague forwarded us an article which stated that Yolo County had been holding criminal trials only, but recently had made an exception for a personal injury trial that had started on March 2 and had been suspended because of the pandemic. The jury returned and rendered a verdict in July. From that experience, Judge McAdam stated he was confident that civil jury trials could resume in Yolo County. He was quoted as stating "We figured if you could go grocery shopping, you could administer justice."

We never thought being an attorney was a hazardous job. Maybe back pain from sitting too much and a couple paper cuts were to be expected. We both have teenagers at home -- Matt has two teenage daughters, and Bill has two teenage boys and a teenage daughter. We have been very conscientious about safety precautions for fear of transmitting anything to them. But here we were, being ordered to appear in-person for a jury trial that was expected to last at least two weeks. We would need to meet with our witnesses in person to prepare them for testifying. We would all be in a courtroom together, along with jurors and courtroom staff. We had to stay in a hotel in Yolo County. Would we need to self-quarantine when the trial was over? What if someone became ill during the trial?

When we appeared on October 26, Judge McAdam announced that out of the 400 potential jurors, we were left with a pool of 32 jurors for our trial after hardships. This suggested that a potential juror simply had to state they were not comfortable doing jury duty in-person in order to be granted a hardship. It was heartening to understand that the 32 potential jurors who remained were there because they took the concept of jury duty seriously.

The courtroom had space for only 24 jurors during voir dire. All the jurors sat in numbered seats spread six feet apart; some in the jury box and the remainder situated throughout the courtroom gallery. Yolo County has a very nice modern courthouse. This clearly would not be possible in many courtrooms.

Because there were more than two parties, pursuant to Code of Civil Procedure Section 231, both sides were allotted eight, rather than six, peremptory challenges. When each side had reached five challenges, it became questionable as to whether we would be able to seat a panel of 12 jurors. We discussed the possibility of stipulating to six challenges, or to a jury of less than 12. Because there were two potential jurors remaining whom we intended to challenge, we declined to stipulate to 6 challenges. With the jurors moving from seat to seat throughout the entire courtroom as challenges were made, it became nearly impossible to keep track of the jurors' names as voir dire progressed; instead questions were addressed to the jurors by their juror number. We were ultimately able to select a jury of 12, but with no alternates. All the jurors declined the offer to wear face shields and all wore masks instead. Six jurors sat socially distanced in the jury box, the reminder were spread out throughout the gallery. Each day of trial the jurors alternated seats so that all got to be in the jury box during at least some of the trial.

It was certainly odd having to question jurors and witnesses while wearing a face shield. Jurors wearing masks are even more inscrutable than in an ordinary trial. We noticed that the jurors did not seem to socialize during breaks as they normally are wont to do, obviously because of social-distancing mandates. All this made it very difficult to get a read on any of the jurors during trial. And with half the jurors seated behind us in the gallery, it was impossible to make eye contact with all the jurors while questioning witnesses. It was also hard for our witnesses to do so while testifying.

No court reporting agencies would send court reporters in-person for trial. As a result, the court reporters were on Zoom for the trial, which had its challenges. At one point during a crucial part of Bill's cross-examination of one of the plaintiffs, we had to take a short break because the court reporter's Zoom feed cut out. The ultimate transcript was less than perfect, but was the best that could have been done.

On the day of closing arguments, we were informed by Judge McAdam that a juror had reported ill with possible COVID symptoms. The trial would be suspended for 10 days. We both went to our respective homes and got COVID tests; negative, thankfully. The morning we resumed the trial, Judge McAdam informed us that the juror who had been ill tested negative for COVID, but a different juror had called in ill that morning, believing he had COVID. Judge McAdam asked the jurors if they wanted to proceed or take another break, and to their credit, the jurors all stated that they were committed to staying until the end of the case. We proceeded to verdict with only 11 jurors.

The jurors deliberated in the locked courtroom, socially distanced, with the security cameras turned off. Within two hours, the jurors returned a verdict: unanimous and in our favor. 