In-person trials: ready... set... never mind

On March 6, 2020, I walked out of the Los Angeles courthouse after completing a two-week jury trial. I never imagined that I would be leaving the court for last time in 17 months. The only clue to the upcoming pandemic was my interaction with attorney Michael Fields, a friend and colleague for many decades who is the husband of appellate Justice Eileen Moore. Michael was working as a volunteer mediator in the Spring Street courthouse when we ran into each other during our lunch break. Seeing Michael, I reached out for a friendly embrace only to be met by Michael's sharp elbow. When his elbow met my chest he said, "I'm not hugging right now, there's a virus going around!" Chastened by his words I awkwardly extended my elbow and so went my first COVID bump.

Within a week's time the courthouse was closed.

And so it was on July 8, 2021, I found myself returning for my first in-person court appearance. While I was a very early user of Zoom technology and while I have had the experience of a Zoom court trial (see my last Daily Journal article), I had my wife snap a picture of me in a full suit. Imagine that. For a year and a half my suit pants sat by themselves in my closet while my suit jackets, dress shirts and ties were often worn with my shorts. On July 8, I appeared before Judge Gilbert Ochoa in Dept. 24 of the San Bernardino courthouse. It had been many years since I had been to the San Bernardino court. I had been asked by a colleague from Houston, Texas to serve as co-trial counsel in one of his Roundup pesticide cases. This will be their fourth case to be tried against Monsanto. It was a thrilling moment to return to a physical court, fully suited,unmasked, and preparing for my first in-person trial since March 2020.

The moment of freedom was short lived. Our pre-trial with Judge Ochoa was all conducted in-person with no social distancing and without PPE. However, two weeks later, Judge Ochoa announced that when jury selection was set to begin the San Bernardino court was re-instituting a mask requirement. Given his enormous case load, Judge Ochoa is only able to engage in jury trials Monday through Thursday from 10 a.m. to noon and from 1:30 to 3:30. That amounts to less than four hours of trial per day only four days a week. Realistically, with juror breaks, sidebars and other assorted "interruptions," that means about three hours of evidence a day. While the original trial estimate was five or so weeks assuming we could be in trial from 9:30 a.m. to 4:30 p.m. Mon-Fri, with the proposed trial schedule in Judge Ochoa's court we were going to be asking jurors to be available until Halloween. Somewhat amazingly it only took four days and about 160 jurors to find 16 souls that were willing to do their civic duty and join us on this extended and important journey.

And then the challenges began. Everyone was masked. I had always wondered what jury selection would be like when you could not see any facial expressions and merely needed to rely on body language, tone of voice and words to gauge a juror's ability to serve as a juror. Quite frankly it wasn't as hard as I had imagined but having to personally be masked with the mask constantly slipping below my nose or rubbing against my chin was challenging. Going back into chambers where all of the attorneys and the judge were fully vaccinated allowed us to shed our masks so we could speak unencumbered and freely. Like bandits entering a bank, we had to remember to put our masks back on as we reentered the court room each time.

There were a few early glitches and one stunning reality of the "new" in-person jury trials. The first, minor, but embarrassing challenge was defense counsel forgetting to turn off his lavaliere microphone, one that defendants brought with them to the trial for better audio, when he stepped into chambers for a sidebar allowing the jury to hear his first few heated words broadcast throughout the courtroom's speakers. The jury was entertained by this "hot mic" moment, but that was the least of the challenges. When we called our first witness to the stand, a world class biostatistician, he was shrouded by plexiglass on three sides and was fitted with a clear face shield. I likened the witness stand to a penalty box in hockey. The amount of glare caused by the many layers of reflective plastic prevented the jury from clearly hearing and seeing the witness testify. For the doctor to take a sip of water itself was a comical moment.

This witness who had travelled to California from Europe in order to provide deposition testimony remained in Southern California for 10 days waiting to testify. After he gave his direct and some cross examination, he needed to leave California and would be unable to easily return to continue "live" testimony. Fortunately, Judge Ochoa is a huge proponent of Zoom remote appearances. Judge Ochoa made clear that if a witness was unable to appear in person in his courtroom, he would order the witness to attend remotely even if opposing counsel objected. So, when our biostatistician was forced to leave California, Judge Ochoa was very comfortable ordering he "return" to court via Zoom. What an amazing difference. The expert next appeared before the jury as a 10-foot wide, 8-foot tall digital image where you could see every crease, wrinkle and blemish of his massive image leaving no mystery about what the witness was saying when he responded to each and every question. It was, to say the least, a breath of fresh air, to have such a clear unobstructed view of his testimony. Quite frankly, the contrast of this witness first testifying before this jury from the "penalty" box and then to the big screen left nobody in doubt of the most effective, impactful way to take evidence in a COVID world.

Nevertheless, the trial team pushed on until we were advised by the defense team that one of their attorneys in court had tested positive for COVID-19. That was the weekend of August 14. Fortunately, we had planned on being dark on August 16 and 17 since lead trial counsel Bart Williams was taking his son to begin his freshman year at college. Unfortunately, over the next several days, three additional members of the defense team tested positive, two members of the court's staff, and then juror number one tested positive, too.

Judge Ochoa made it simple. On Wednesday, August 18 he said, "we are facing a facing a public safety crisis. This trial will continue as a fully remote trial.

The purpose of this series isn't to detail, as much fun as it is, what reemerging back into trial has been like for me, but to provide some insight into what the first fully "remote" jury trial in Southern California is going to look like. In light of the positive COVID cases in just Judge Ochoa's department over the course of one week, all counsel have agreed that moving the trial to a fully remote platform is the only way to avoid a mistrial and salvage hundreds of thousands of dollars in costs invested so far in this action. We have jointly purchased 15 Samsung Chrome Books, and on Monday the trial resumed on a fully remote basis. The jurors were "trained" last week on how to use the Zoom application for those that are unfamiliar.

So, what is the remote trial going to look like? Stay tuned.