Lawyers report success with COVID jury trials

WHITE SULPHUR SPRINGS, W.VA. — Courts are trying civil cases again, and four trial lawyers returned from the battlefields to share success stories at the Virginia Trial Lawyers Association annual convention March 26.

As of that date, the Supreme Court of Virginia had approved 113 jury trial plans out of 120 circuits, according to Justice William C. Mims, who addressed the lawyers.

Some lawyers had worried that pandemic-weary jurors might be less receptive to damages claims, but the awards reported were as good as or better than expected. Moreover, an extensive VTLA survey of potential jurors suggests they’re not afraid to serve and their views of justice and fairness are largely unchanged.

Meanwhile the Supreme Court, mindful of the limits of its authority, has largely delegated management of coronavirus-era trials to the chief judges of the circuits, Mims explained. “Plans are not orders…. We are giving guidelines,” Mims told the attorneys.

Good results

Bridget N. Long of Richmond tried a soft-tissue injury case in Charlottesville, with damages the only issue. She worried that jurors, impatient to return to the safety of home, would be skeptical of her client’s claims of permanent injury with actual medical expenses of only about $15,000.

The jury deliberated two hours and returned a verdict of $188,500 on Jan. 4, Long said.

Kelly Martin of Richmond notched a win with a car wreck victim who suffered a broken nose. He reported he had to use a peremptory strike to remove a potential juror who seemed annoyed that the lawyers couldn’t settle without making everyone come to court.

Like Long, Martin reported his jury took its time with deliberations and returned a “very good result” for his client.

But Martin added that, with all the careful preparation for his first COVID jury trial, he had neglected to test out his mask.

“That thing destroyed me during the whole trial. I thought it was going to rip my ears off my head. I needed to do a better job of getting a comfortable mask ahead of time.”

Gregory S. Hooe said he won a $75,000 verdict with a Petersburg jury in a case the defense valued at just $35,000.

Brody H. Reid of Richmond reported success with a Henrico County case. He remarked on the “ton of Plexiglas” used to isolate jurors.

“They’ve essentially created hockey penalty boxes for every juror,” he quipped.

Mims said he welcomed the reports of single-day trials. The danger of infection magnifies as time goes on, he said.

The handling of jurors varied. In Charlottesville, the jurors were spaced out in the courtroom’s gallery and never left their seats except to use the restroom. They ate their lunches at their assigned seats, Long reported.

By contrast, Richmond jurors were allowed to leave the courthouse for lunch, Martin said.

For lawyers with concerns about how courts are handling jury trials, Mims suggested that local bar organizations approach the chief circuit judge to try to solve problems.

Survey

A recent extensive survey of potential jurors funded by VTLA members had good news to offer: Jurors are willing to come hear your case.

“They are not going to risk contempt. They will appear for jury duty,” according to a printed review of the VTLA Juror Project. Willingness to serve increased as time passed during the seven months that questions were asked. Demographics will not be significantly altered and familiar opinions and bias among jurors are largely intact, the survey said.

But the survey showed jurors want to know about the trial precautions and they expect lawyers to wear masks.

“That was one of the strongest, clearest dictates from the jurors. If you don’t, they assume the lawyer does not care about their safety, is inconsiderate, less trustworthy, or is irresponsible,” the report said.

The survey suggested some advantages for pandemic trials. New technology is less jarring as jurors and courts are more comfortable with remote presentations – “No more penalty for virtual witnesses.”

Lawyers are urged to embrace a faster trial: “Streamline, edit, and present the cleanest case you can. Your jurors will appreciate the speedy trial and less time in court.”

But lawyers may want to keep an eye out for that citizen who really does not want to be in a jury box or even in a courtroom. Mims said he received a text from his sister-in-law explaining she planned to ask a judge to excuse her from jury duty because she had not yet been able to get a vaccination.

“I’d be perfectly willing to serve, but I feel it’s unfair to require me to risk my health during a freaking PANDEMIC,” she wrote, with “pandemic” in all caps.

Mims pointed out the rules direct judges to take a liberal approach to excusing jurors for COVID concerns. Mims did not disclose the sister-in-law’s name or the court in question, but he said, “I certainly hope she’s excused, because if not there is going to be one very unhappy juror.”

Judicial emergency statute

Mims says credit for the clear division of authority on court operations during the pandemic goes to former Supreme Court Chief Justice Leroy Rountree Hassell, who formed a commission to plan for a worldwide pandemic in 2009.

“He was prescient. He recognized what a pandemic could do to the court system,” Mims said.

After a study, the court sought a new statute, Va. Code § 17.1-330, and it was approved in 2010 with little notice. It provides for a declaration of judicial emergency and gives the court the ability to manage its own caseload and logistics in the case of a pandemic.  To imagine any governor “micromanaging the court system during a global pandemic would be beyond anything that I wish to think about,” Mims said.

In the past 53 weeks, Mims said the court revised its rules and procedures and even some statutes as it dealt with the pandemic, but faced significant internal “discord” when it ventured into non-judicial public policy related to an eviction moratorium. Mims said he is grateful the issue has been taken from the justices by federal regulation.