COVID-19 and the Vanishing Trial


            I’m not sure what the new normal will look like for litigators in the wake of the ongoing COVID-19 crisis, but several things seem obvious enough.

            First, I doubt seriously that any juries will be selected until sometime in 2021.

            Why?  No one is saying that we are anywhere close to having a vaccine that can inoculate against infection. When one is discovered, it will have to be produced, distributed and administered. That’s going to take time. It would not surprise me to for this process to take at least one year, possibly two.

            What juror will volunteer to serve knowing the infection is possible? Covid-19 is easily transmissible, we’re told. Indeed, this weekend there was a new and disturbing report that it might jump species – a tiger at the Bronx Zoo tested positive. (Just why was the tiger tested, you ask? I have no idea.)

            On the criminal side, trials will be delayed yet more. Defendants filing speedy trial claims will have their motions denied “in the interest of justice.” Plea bargaining for tough cases will grind to a halt as the threat of trial will not force decisions.

            Civil trials? Forget about ‘em. Yes, there is a Seventh Amendment right to trial by jury in civil cases, but there is no speedy trial act to put teeth in the right. Insurers will find more reason to delay coming to terms with plaintiffs. Delay, delay, delay. Plaintiffs will have to hunker down and be patient or settle their cases for a fraction of what they are worth.

            Second, the courts will eventually resume some semblance of activity. There will be enormous pressure on litigants – civil and criminal, to elect court trials with judges as factfinders.

            But here’s a question: Given the apparent ever-present risk of infection, what will judges do if lawyers or litigants refuse to appear in the close confines of a courtroom? Recall, all we are doing with our quarantine efforts is “flattening the curve,” slowing the rate at which people become infected so that the ability to treat people is spread over a longer period of time, thus avoiding hospitals’ becoming overwhelmed. Dr. Anthony Fauci has maintained throughout the crisis that there is likely to be a spike in cases in the fall. In the past week, I’ve had people refuse to accept legal documents for fear of infection.

            Lawyers, litigants, judges with special health needs, or with family members who are vulnerable, would be within in their rights to refuse to respond to a summons to appear. What then? Contempt? Sanctions? Nonsuits? Defaults?

            Besides, are we really going to enter a courtroom and swear witnesses who are permitted, or is it required, to wear masks to avoid spreading contagion? Short answer: No.

            The courts might be tempted by offering the option of a tele-trial. No sooner had quarantine orders issued than electronic vendors began to raise the possibility, no doubt sensing a potentially lucrative demand for their services.

            I won’t recommend remote fact-finding trials. Here’s why:

            Last week, I “attended” a federal detention hearing and presentment. I was in one location, my co-counsel in another, the client at a third location, the translator in a fourth, the judge and prosecutor in a fifth. We were able to transact the business at hand. My client was granted bond over the Government’s objection. But it felt like a trip to Gilligan’s Island: what should have been a brief trip to court took four hours.

            First, there were the technical issues. We were all – me in particular – feeling our way along with new technology. Those difficulties can be overcome with practice.

            Next, there was the surreal quality of simultaneously viewing a number of different people of screen. Some were close to the screen, and their facial expressions could be read. Others were further away: it was hard to know what those folks were thinking. Reading faces, body language, if you will, is a good part of what a trial lawyer does.

            Third, the inevitable signal lapses from time killed the flow. The hearing took twice as long as it should have. (We had a persnickety translator – she was from Nebraska. One sensed she loved being at the center of things. It was amusing how she kept trying to correct participants who referred to her as the translator. “The interpreter,” she’d hiss in paraphrasing what was just said. She wanted a gavel and a robe in the worst possible way.)

            Simply put, legal argument in a fishbowl is one thing. Assessing credibility is another. I cannot see agreeing to take testimony without the actual ability to confront a witness. I am not prepared to waive that in criminal cases; I am prepared to fight for the right in civil cases.

            Finally, I am not a fan of court trials, for the most part. Judges are world-weary and have seen it all. Juries represent the conscience of the community. The law is not mathematics, it is legal doctrine applied to the messy exigencies of living. I want ordinary people deciding what’s reasonable. And “reasonableness,” mind you, is one of the secret lynchpins on which the entire edifice of the law turns. Assessing reasonableness is where Covid-19 will have its greatest, and most challenging, impact on the law.

            Expect conflicts as a judiciary impatient to move a burgeoning docket tries to order litigants into remote court trials. Those willing to have their cases heard in such a manner will get privileged treatment. There’s nothing wrong with that, of course. But parties need to be advised of the risks and rewards of such a strategy.

            I’ve happily wandered from one courtroom to the next for the past quarter century or so, trying criminal and civil cases. I’ve loved the work. As I enter the twilight of my career, I sense an end of an era, a challenge to develop new skills.

            The vanishing trial?  No, make that the vanished trial. I’m just not sure what happens next.

Also listed under: Coronavirus

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