Trial Is Still Trial

by Ron Park, Friedman | Rubin, PLLP

This article was reposted from the November 2020 issue of Trial News, the monthly newspaper of the Washington State Association for Justice.

For trial lawyers, one of the biggest ways COVID-19 has impacted our lives is in putting trials of any kind on hold for several months. Now, trials are resuming here and across the country in different forms. Some courts have conducted trials in a completely virtual format. Some have resumed in person trials with many adjustments to protect the health of all participants. Others have opted for a hybrid approach, doing some parts of trial virtually and other parts in person.

Last month we had the opportunity to try a case in the King County courthouse in downtown Seattle. As with other trials in King County, it took a hybrid form; voir dire was done virtually on Zoom, the rest was done in person. Jurors wore masks and sat in the gallery where they could be socially distant. Unable to move counsel table, the attorneys wore masks and sat facing the jurors with our backs to the judge and the witness stand. The judge, courtroom staff, and witnesses wore masks as well. The witnesses wore clear masks so the jurors could see their faces. Two witnesses, who could not appear in person, appeared by Zoom. Screens were installed, not just for jurors, but for the attorneys at counsel table and for the witnesses on the witness stand as well, so that exhibits and demonstratives could be shown electronically without handing paper from one person to another.

It certainly was not normal, and it certainly was not comfortable. It is awkward, to say the least, to look up from your notes and always be face-to-face with a juror, constantly and unavoidably in his line of sight. Maybe it was more awkward to always have to twist and turn to address the judge for any matter. But the truth is, both during trial and reflecting on it afterward, my mind never dwelt on these peculiar procedures or adjustments. Which is to say that it never felt, and it still does not feel, as if the outcome of that trial and the effectiveness of our case came down to the masks on our faces, the distance between the jurors, or the myriad other ways in which this trial was not a “normal” trial.

My mind was occupied instead with the story of our case, how to present it to the jury, and how to incorporate or deflect the defense’s story. Should I ask this question? Maybe I should ask it a different way? Should I call this witness? Maybe in a different order? Should I explore this topic? Should I use this exhibit? Object? Not object? Should I have said this in opening? Should I have left that out of opening? Maybe we should have worked this whole thing up differently from the very beginning? The mask on my face never crossed my mind. Nor did it cross my mind after-wards, as I sat marinating in a defense verdict.

I must confess that my first opportunity to try a case in COVID conditions was also my first opportunity to try a case at all. I have no way to compare this first experience to any other, much less a “normal” trial. Perhaps if I could, the differences imposed by COVID would loom in my mind as the culprit for the result. But I do not think so. At the end of the day, trial was still trial (at least, as I had always observed it). We still had voir dire, opening statement, direct examinations, cross-examinations, and closing argument. The work remained the same. The facial accessories and novel seating arrangements did not change that.

Which is not to say that these COVID accommodations are unimportant or do not matter. It goes without saying that every attorney about to go to trial should familiarize themselves with those accommodations and adjust accordingly. I only mean to say that after you do, trial will be trial. And I hope that gives some comfort to those who have yet to step back into the courtroom.

Ron Park, EAGLE member, is an attorney at Friedman | Rubin PLLP in Seattle.