Ed Hugo, Tina Glezakos and Bina Ghanaat’s Commentary, “Trial By Trial And Error” Is Published By HarrisMartin

Posted on Wednesday, 19 August 2020

As the Alameda County Superior Court presses on with its attempt to conduct the first remote asbestos personal injury trial during the COVID-19 pandemic, the number of problems irrevocably violating the parties’ due process rights continue to mount.


Most recently, during a break in the plaintiffs’ cross examination – and while the Judge conducted a sidebar with plaintiffs’ counsel, defense counsel, the court clerk, and the court reporter in a Zoom “break out room” (completely isolated in terms of audio and video from the main “court room”) – the plaintiff joined a conversation with the jurors in the Zoom “courtroom” about installing virtual backdrops and received instructions and examples from two of the jurors on how to do so. After ingratiating himself with the jury, the plaintiff stated: “I’m going to get out now before the judge comes back.” Approximately one minute later, the judge, all counsel, the court clerk, and the court reporter returned to the main “courtroom” and cross examination of the plaintiff continued. The misconduct was only discovered and reported because defense counsel had assigned a paralegal to watch the jurors at all times after the court denied defense counsel’s request to record the entire proceedings using Zoom’s recording function so that there would be a verbatim record of the trial.


Perhaps most shocking of all, during the trial, defense counsel learned that plaintiffs’ counsel had the ability to mute them, thereby preventing the defense from objecting or even speaking at all! The court previously denied a motion for mistrial on this issue:


“There were feedback problems encountered between them (sic) remote “zoom” and in-court monitors, which caused feedback- feedback that defense counsel rightly complained of. The court, its staff and the parties endeavored to find the cause of the feedback, which was discovered to be the result of the interplay between the audio devices. The only short-term solution discovered was to mute all speakers other than the current speaker. There were times that this resulted in a party not being able to voice an objection. In every case that the court is aware of, however, the problem was identified and the objection was made, or repeated.” [Order Denying Motion for Mistrial, Aug. 6, 2020, Calif. Super. Ct., Alameda Cty.]


This host of issues is by no means surprising given the similar problems that arose during voir dire. During the remote jury selection process, jurors were visibly distracted or not even present for stretches of time. For instance, one potential juror was exercising on an elliptical machine, while another potential juror lay in bed and appeared to be asleep. Yet another juror left the screen during questioning to go to the kitchen and remove something from his stove top. Still other jurors were connected to Zoom with one device while simultaneously using another device. Counsel’s ability to lodge objections to such behavior was hampered because: (1) the Zoom platform was configured such that it was not possible to see the first 18 prospective jurors at the same time; and (2) all defense attorneys were placed on mute during plaintiffs’ counsel’s examination by the court clerk and were unable to object because they could not unmute themselves for more than 30 minutes.


Trials should not be conducted by “trial and error,” even during a pandemic. Rather, courts should consider the admonition iterated by the 1st District Court of Appeal in considering “the severity of the COVID-19 pandemic and the impact it has had within this state” that “[p]ublic health concerns trump the right to a speedy trial.” Stanley v. Superior Court, 50 Cal. App. 5th 164, 169 (2020) (citing People v. Tucker, 196 Cal. App. 4th 1313, 1314 (2011). Expressed differently, “[w]hen pandemics or other emergencies disrupt court operations, decisions about which proceedings to delay and which proceedings to conduct must be based on a careful balancing of the actual risks presented and the specific rights at stake.” Bullock v. Superior Court, 51 Cal. App. 5th 134 (2020). To the extent possible, and in accord with the procedures being implemented by many superior courts and federal courts in the state, civil jury trials should be continued to such a time as the public health crisis is sufficiently under control to allow jurors to appear in person without fear of contracting an illness.


In the interim, if a civil jury trial must proceed remotely, it would be useful for the court to: (1) hire a technology expert at its own cost, (2) research and implement a superior alternative to Zoom, including a videoconferencing platform that allows counsel to see all members of the venire while conducting voir dire, and (3) resolve all technical difficulties, including the muting and unmuting of participants during the voir dire process, prior to the start of trial. Furthermore, the court should record all proceedings so that improper ex parte communications, such as the one between the plaintiff and the jurors in the above-referenced case, can be documented and swiftly addressed. In addition, prior to the start of trial and jury selection, the court should set forth clear guidelines regarding the conduct of the trial, with protocols for anticipated complications, such as technical issues. Most important of all, when a party is irreversibly prejudiced, the court must be willing to declare a mistrial instead of continuing on with a trial procedure that has proven to be infeasible.


Although there is no perfect solution, we will continue to strenuously fight for our clients’ right to a fair trial despite the extraordinary strains caused by the current pandemic.


Link to this HarrisMartin publication.




Edward R. Hugo and Tina M. Glezakos are partners and Bina Ghanaat is senior counsel at Hugo Parker LLP.


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