Trials In The Time Of COVID
“Justice delayed is justice denied.”
For criminal cases, the United States Constitution guarantees a right to a speedy trial. Oregon’s Constitution (Article I, section 17) says that “In all civil cases the right of Trial by Jury shall remain inviolate,” but does not guarantee the right to a speedy trial in civil cases. In Oregon, civil trials have been mostly delayed since the start of the COVID pandemic in early 2020.
Delaying trials during the pandemic has been a hardship on many injured people and their families. While insurance companies generally use delay as a tactic to improve their negotiating leverage, without firm trial dates, there is no good reason for insurance companies to settle some cases at all. Injured people who depend on the courts and the civil justice system to help with their lost income, medical bills, and other losses after an incident have been put in an exceptionally difficult situation.
Many people we represent have suffered from an injury and suffered again from pandemic delays in the civil justice system. For that reason, we have been following closely different approaches taken around the country and around the state to keep the wheels of justice turning to at least some extent. Judges have been experimenting with remote trials, socially distanced in-person trials, and “hybrid” trials combining some elements of each.
Just before Thanksgiving we were allowed to try a case on behalf of a local man who had been sitting in his pickup truck in a private driveway on a Christmas morning when a car came down a hill at highway speeds, left the road, and crashed into the driver’s side door of the man’s pickup truck. Because of the pandemic, there was an almost four year delay from the date of the crash to the date of the trial.
The trial judge followed COVID protocols that included social distancing of jurors, exclusion of the public from the courtroom itself, extra social distancing of witnesses in the courtroom, use of both remote and recorded witness testimony, and other measures.
By Oregon law, trials are public proceedings. The public has an interest in enforcing the community’s safety rules, and in knowing how its courts function. To balance the interest in public trials against public health concerns, the court provided WebEx connections (like a Zoom meeting) so that people who wanted to watch or listen to the trial could do so remotely.
Jury selection was challenging because only a limited number of prospective jurors would be accommodated in the courtroom. Prospective jurors were masked and socially distanced, with 17 in one courtroom live with the attorneys and judge and another 17 in an adjacent courtroom with a WebEx link. The “remote” prospective jurors could not interact with the attorneys during jury selection, so when jurors in the “live” courtroom were excused, new prospective jurors had heard earlier questions and answers, but had not actively participated. Both the attorneys and the new prospective jurors had to start over, to some extent.
During the trial, jurors were socially distanced throughout the courtroom. Before the pandemic, jurors sat in the jury box, and attorneys were used to presenting their cases that way. In this trial, only three jurors were in the jury box, and the remainder were spread across the benches that make up what is ordinarily the public seating for the courtroom. Those seating arrangements made it challenging for the attorneys on both sides to make sure all the jurors could see and hear what was being presented, and to have eye contact and read faces during the trial. In-person witnesses testified inside a plexiglass box, which made it difficult for them to hear, and wore masks, which made it harder to understand them.
Before the pandemic, special permission had to be requested and obtained before a witness would be allowed to testify remotely in a jury trial. In this trial, some witnesses were allowed to appear remotely by WebEx as a matter of course. The remote testimony, shown on a relatively large screen, allowed jurors to see the full faces of the witnesses, without masks on, and also facilitated the presentation of visual evidence during their testimony.
Like the jurors and the court staff, the attorneys remained masked throughout the trial. That made it more difficult for jurors who rely to some extent on seeing lips in order to understand what is being said. It also made it more important than usual for the attorneys (and witnesses) to speak up in order to be heard.
One additional challenge posed by restricted access to the courtroom was the limited ability to support the attorney conducting the trial. Before the pandemic, for example, it would be normal for someone to run over to the courthouse to provide documents that were needed on short notice. In this trial, anyone wanting to go to the courtroom had to wait outside until there was a break and the trial attorney could come out and see them.
The trial took a little longer because of the COVID protocols, requiring seven days in the courtroom. On the whole, everyone involved made the necessary adjustments to complete the process despite the public health challenges. The jury returned a verdict of $659,317 in favor of the injured local man.
With all of the uncertainties of the pandemic, it’s good to know that the courts have the ability to be flexible enough to figure out ways for trials to continue, even if they look somewhat different than they looked in the past.