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A Fresh Take

Insights on M&A, litigation, and corporate governance in the US.

| 6 minutes read

Trying cases during trying times: Recommendations for the bench and bar

With the recent and unfortunate surge of the delta variant, it’s clear that judges and lawyers will need to adapt to new ways of trying cases for the foreseeable future in order to keep all trial participants safe and healthy. However, it is also important to continue to refine these procedures so as to minimize the challenges inherent in trying cases during these unprecedented times.

The following article is posted with permission from the August 27, 2021 edition of the New York Law Journal © 2021 ALM Media Properties, LLC. All rights reserved.

Last year, buoyed by a then-decreasing number of new COVID-19 cases, the Southern District of New York, like other federal courthouses around the country, slowly started to come back online after a lengthy pause in what is ordinarily a vibrant and vital docket. Since the start of the pandemic, the court has reportedly spent $1 million to reconfigure a handful of courtrooms and establish precautionary policies to resume the important work of the court—including jury trials. Despite these efforts, the court has not been immune to disruption stemming from the virus—earlier this year, a juror in a bank fraud case tested positive for the virus, prompting her and another juror’s dismissal and their replacement by alternates.

In October 2020, while the virus again started surging in New York (as elsewhere), the authors represented a former health care executive charged with securities fraud in a four-week jury trial in SDNY. The trial was one of only three in-person jury trials last fall, and the only white-collar criminal trial. Our trial team thus acted as canaries in the coal mine by testing and helping to shape safeguards the court is now employing. Many of those safeguards worked well but some did not, and it is now worth rethinking what is strictly necessary from a safety perspective versus what modifications can be made to help counsel try their case in a manner that is as close to “normal” as current circumstances allow.

Specifically, we found that the most challenging COVID-19-related restrictions were:

  • The restrictions on communicating with our client and co-counsel;
  • The massive, courtroom-length expanded jury box;
  • The phone-booth-like plexiglass attorney’s podium located about 25 feet from the jury box; and
  • Masked jurors.

To maximize the ability to socially distance, our trial was held in one of the large courtrooms on the top floors of the courthouse at 500 Pearl Street, which had been modified by the District Executive. The courtroom itself was reconfigured to allow for social distancing and other protocols, which resulted in a very different trial experience and sanitized not only the courtroom itself, but some of the advocacy within it.

For starters, only one attorney was allowed to sit at counsel table with our client, and we were forced to communicate with him by closed-circuit telephone. The attorney’s podium and the witness stand were each encased in a plexiglass box with a HEPA filter atop each box. The jury box was enlarged and stretched the length of the courtroom, taking over much of the public gallery, with tiered seating for jurors towards the back of the courtroom (visualize the bleacher seats at Yankees Stadium). As a result, the trial teams themselves, members of the press, and members of the public jockeyed daily for the handful of remaining seats in the gallery, with the remainder of counsel and observers relegated to an overflow courtroom on another floor that broadcast a closed-circuit stream of the trial.

In order to keep our trial team safe and reduce COVID-19 exposure from the outside world, our entire trial team (half of whom were from Washington, D.C., and half of whom were from New York City), relocated to a hotel in Chinatown, where we functioned as a trial “pod.” We set up various war and breakout rooms throughout the hotel and every team member was tested for COVID-19 at least once per week. We were concerned about protecting one another’s health and safety, of course, but our concern was far greater for our 81-year-old client, who was also battling cancer at the time of his trial. Thankfully, he and everyone else on our team remained healthy throughout the trial, which concluded when the jury reached a unanimous verdict that partly exonerated our client.

Once lawyers implement a trial “pod,” however, courts should consider easing some of the restrictions that made the conduct of our trial considerably more challenging. For example, it seemed artificial that we could not try the case sitting next to each other at counsel’s table—even while masked—when we were working together in the same hotel each night to prepare for the next trial day. Further, it was extraordinarily difficult to conduct the trial without a dedicated conference room in the courthouse to meet and confer with witnesses and one another throughout the trial day.

The courtroom restrictions also required our team to think of creative ways to communicate with, share information with, and support one another during trial, including using iPads loaded with SharePoint and text messaging applications. The court could assist these efforts by simply increasing the availability of Wi-Fi and Internet connectivity to litigants in the courtroom. Finally, because the passing of paper was also discouraged, we needed to pre-load into our digital trial software every imaginable document that we might need for cross-examination, well ahead of the trial day, lest we be stranded in the middle of cross-examination without a key exhibit.

Given the extraordinary distance between the witness stand and the jurors located at the rear of the courtroom in the expanded jury box—approximately 60 feet away—the court should consider a video feed of the witness testimony for the jurors located in the back of the courtroom. Of course, it’s not ideal for a juror to judge a witness by watching a video screen, but watching the witness on a screen is far superior to trying to discern a witness’ demeanor from the “bleacher seats” in the expanded jury box.

The plexiglass attorney’s podium was also secured to the floor—but it was located on the opposite side of the courtroom from the jury box about 25 feet away from the nearest juror. When safely ensconced in this plexiglass box, we were allowed to remove our masks, which was a welcome reprieve during long trial days. But bad acoustics, blocked sightlines throughout the courtroom, and an awkward glare emanating from the inside the box made trial presentation challenging. Most importantly, however, positioning the box 25 feet away from the closest juror and about 45 feet away from the bleacher seats, made it exceedingly difficult to truly connect with jurors in the way every advocate aspires to do. To improve this arrangement, the court should consider simply moving the podium much closer to the jury box, which would allow advocates to better see and engage with both jurors and witnesses, while still allowing sufficient social distancing (in addition to the protection provided by the plexiglass). The court should also consider utilizing clear face shields and/or clear masks, which also satisfy CDC protocols and which would allow experienced advocates to better “read” jurors’ facial expressions and modify their arguments accordingly.

Bench conferences to argue evidentiary issues were initially held the old-fashioned way—at the bench. But it quickly became apparent that, in raising our voices to be heard through our masks, we were defeating the purpose of approaching the bench because the jury could hear our discussion. And so after the first day of trial, we began retreating to an adjacent robing room to argue legal issues in private. As we quickly learned, advocates in this position would be well-served to brief evidentiary and other trial issues each night, thereby reducing the need for mid-witness bench conferences and instead allowing the judge to rule on such matters during trial breaks.

The court’s COVID-19 protocols and necessary restrictions undoubtedly impacted the way in which all of the parties approached their respective cases and affected the lawyers’ ability to connect with and read the jury in the way every advocate would prefer. Sadly, it appears some form of these restrictions are here to stay for the immediate future. But if the advocates who will face these challenges in the future, and the judges presiding over their cases, work together with open minds to address these challenges, we can safeguard as much of the advocacy as possible in our jury trials for all parties until trials as we previously knew them can return to normal.


litigation, covid-19, white-collar defense