My Coronavirus Trial

The ongoing coronavirus pandemic has upended life for many Americans while wreaking havoc on health systems and economies across the globe.

And it has not spared the legal industry. On March 23, California’s Chief Justice of the Supreme Court suspended all jury trials for two months, which would be stunning if the world wasn’t turned upside down already. Although the delay of justice is frustrating, at least there is some certainty about what is happening (or not happening) for the two months following the order.

There was not as much certainty back on March 9, when I started a jury trial in one of the nation’s busiest court systems, the Stanley Mosk Courthouse in downtown Los Angeles. That was also around the time when confirmed cases of the virus began increasing daily at an alarming rate in the United States. (All references to confirmed cases of Covid-19 in this post are based on figures reported by the Johns Hopkins University & Medicine Coronavirus Resources Center website.)

This is the story of the jury trial I started — and did not finish — during the coronavirus outbreak.

March 4 - Final Pretrial Conference (217 confirmed U.S. cases)

I have represented a client in a business litigation case that has been pending for about three years. There are multiple parties and cross-complaints, some of which seek millions of dollars in damages.

On March 4, we had our final pretrial conference and the judge confirmed that we would begin trial on March 9 (my birthday, by the way). At the conference, the judge mentioned that he had another jury trial proceeding in his department at that time and that one of the witnesses was coughing a lot on the stand, making some of the jurors at least appear nervous because the coronavirus had recently been in the news. I had been so entrenched in trial preparation, I think this was the first time it had even occurred to me that people would be nervous about this spreading in the U.S. Neither the judge nor any of the attorneys raised any concerns about the coronavirus impacting our trial, which was scheduled to last two weeks.

March 5 - Got Hand Sanitizer? (262 confirmed U.S. cases)

My firm sponsored a networking/fundraising event that I attended. Despite the long hours I was spending preparing for trial, I had noticed some news by now that coronavirus cases were popping up in the U.S. — but not to a point where I was personally concerned.

At the event, hand sanitizer sprays were passed out at the door and left at all the food stations. But most people shook hands as they normally do. One of my colleagues kidded me when I sprayed my hands with sanitizer after one of those handshakes. I laughed and wondered if it was overkill.

March 8 - Check In (583 Confirmed U.S. cases)

On Sunday March 8, I said goodbye to my family and drove to LA. That evening I put some final touches on my opening statement and prepared for the first witness. I looked at an article in the LA Times about the coronavirus with the headline “Is it time to panic? For some, it’s meh”.

March 9 - Voir Dire (959 Confirmed U.S. cases)

I arrived at Stanley Mosk for the first day of trial. As usual, the courthouse was extremely busy. The attorneys met with the judge to handle some final housekeeping matters before the jurors were brought in. One of the attorneys asked if the judge was concerned about coronavirus. The judge said he guessed things could change but he did not believe it would impact the trial.

Stanley Mosk Courthouse of the Los Angeles Superior Court in downtown LA.

We proceeded with jury selection. 45 prospective jurors were called into the courtroom, which, by the way, is not a large room. Every seat in the courtroom was taken and the jurors sat elbow to elbow. During the voir dire process (whereby the judge and attorneys question the potential jury to try and uncover biases or other reasons to challenge or keep jurors) not one attorney or juror mentioned the coronavirus. After all the attorneys finished their questions, the judge asked if there was any reason at all why any one did not believe they could sit on the jury. No one said anything.

Eventually the court empaneled 14 jurors, including two alternates. We finished opening statements and began examination of the first witness before we recessed for the day.

While we were in trial that day, the stock market had its worst day since 2008, many universities announced they would suspend in-person classes, and the LA County Department of Public Health announced two new cases in LA County, bringing the total there to 16. An LA Times article published that day discussed how health officials were considering a strategic shift to limit public gathering in a hope to prevent the spread of the virus.

March 10-11 - “today feels very different” (1.3k Confirmed U.S. cases on 3/10; 1.7k on 3/11)

The second and third days of the trial proceeded with two of the most important witnesses taking the stand. I was working late into the nights before each of these days, but it became inescapable that the coronavirus had become an outbreak and “a moment” in history.

In court, the judge’s assistant began offering hand sanitizer to the jurors when they would re-enter the courtroom after breaks. One of the other attorneys was obsessively applying hand sanitizer after handling any object.

During a meeting in chambers on Wednesday, I asked the judge if there had been any news within the courthouse about the coronavirus and the potential impact on the court; the judge said while there had been no impact on the LA Superior Court yet, he said that day felt very different from just the day prior, noting the President had instituted a European travel ban. At that time, I don’t know if he was aware that LA County reported its first death from the virus or that the World Health Organization had declared the novel coronavirus a pandemic.

While making it clear we needed to try the case as we saw fit, the judge urged us to consider paring the trial down to finish early.

Later that evening, I grabbed a quick bite to eat in a restaurant at the hotel. I was the only person there and while I perused the menu, the TV by the bar announced that the NBA had suspended its season due to the coronavirus. For some reason, this stunned me more than the news of the European travel ban. A man came in after that and sat a few tables behind me; he began discussing how customs agents at LAX had tested positive for coronavirus. I have no idea if that was true - but I began to worry … if I’m randomly hearing these types of rumors in an empty restaurant, what are the jurors hearing when they go home or when they log onto social media? Regardless, it was jarring to be in trial the entire day, totally focused on what happening in that courtroom without internet access, only to leave the court and look at the parade of horribles come across the news feed on your phone.

At this point, it became difficult to concentrate on preparing for trial, as it seemed like the entire world was shutting down — but the judge had informed us that there was no indication that the courts were closing, noting that schools were still open. Given that, I had to block out everything that was happening in the world and continue to focus on this trial. My client was getting on the stand tomorrow.

March 12 - The Jury Grows Restless (2.2k Confirmed U.S. cases)

On March 12, the judge received a note from one of the jurors stating that he lived with his fiancé, who had an autoimmune deficiency, and he was very concerned about continuing to come to court and potentially passing on the virus to her. The judge excused the juror outside of the presence of the other jurors. When the rest of the jury came back in, the judge informed them that he had excused a juror. I watched the jury as he informed them, and several jurors widened their eyes and exchanged glances with each other.

The judge received notes from three other jurors throughout the day, each raising concerns about continuing to come to court, including one note that expressed it was reckless for the courts to be open. The judge told us he would not dismiss these jurors because none raised a specific reason why he or she could not continue to serve. But he also expressed concern that the court might close or we might lose jurors before we finished the trial and again urged us to try and finish as soon as possible.

That day there was heavy rain in downtown LA, and it seemed like everyone in that courthouse crowded into the upstairs cafeteria during the lunch break. It was the antithesis of social distancing.

The judge ordered us into recess for the day a little early and played a humorous news clip about the run on toilet paper and the lack of any direct connection to the virus. After it was finished he acknowledged the concerns raised by several of the jurors - but he emphasized that the court was following all relevant health guidelines and precautions to keep everyone as safe as possible. He also noted that schools had not closed, and that closing the courts would be a difficult thing to do because they serve such a vital public interest, like hospitals and schools.

March 13 - School’S out (2.7k Confirmed U.S. cases)

The morning of Friday the 13th, LA Unified School District held an emergency meeting to consider closing its schools, which includes downtown LA schools. They announced later that day schools would close.

The Presiding Judge of the LA Superior Court also announced a “recommendation” that all new jury trials be continued for a period of 30 days. Ongoing trials were not addressed. The press release for the announcement stated:

The Presiding Judge of the Los Angeles Superior Court does not have the authority to close the courts in the event of a pandemic, which is what we are facing now, because such emergency orders must be authorized by the Chief Justice and/or Governor. Courts are less akin to schools and more like hospitals and other emergency services that need to stay open to serve the public at all times. We are slowing down our trial court operations in a reasonable and responsible way, while still providing services that protect public health, welfare and safety.

One of the attorneys at trial informed me that her firm’s office had mandated that all attorneys work remotely.

During the lunch recess, a juror actually attempted to talk to the judge about the coronavirus as he was leaving the building, but the judge instructed him not to speak to him.

As far as the trial, my client’s testimony on the stand concluded. He handled himself very well during the cross-examination and I was pleased. The Judge also tentatively granted a motion in limine to exclude the expert witness of an adverse party. He would make a final ruling on Monday morning, but his tentative was strong. If confirmed, it would greatly reduce the damages at issue and streamline the trial to the point where we agreed we could likely finish closing arguments and submit the case to the jury on Tuesday of the following week, a few days ahead of schedule. In sum, we were happy with how the trial was proceeding, and despite the looming fear of the coronavirus, we believed we could finish the trial before the courts potentially shut down.

Despite that optimism, after the jury was excused the for the day, the judge spoke to all the attorneys and parties and encouraged everyone to consider options to settle the case over the weekend because he was concerned the court might close or the jurors might not all return on Monday.

March 15 - HOW WAS YOUR WEEKEND? (4.6k Confirmed U.S. cases)

I drove back to San Diego on Saturday to see my family and sleep in my own bed for a night. On Saturday night, the party whose expert was tentatively excluded on Friday circulated amended expert opinions that his expert intended to testify to on Monday. Needless to say, this triggered the preparation of various motions and objections. At the same time, parties were also still negotiating jury instructions and verdict forms that needed to be submitted on Monday morning.

By Sunday, the confirmed U.S. cases of coronavirus had nearly doubled from Friday and it was clear that those estimates were low — potentially very low — due to a lack of testing. I drove back to LA (which reported 69 confirmed cases on March 15). After I arrived, I heard that Governor Gavin Newsom directed all bars, nightclubs, brewpubs and wineries to close.

Sunday afternoon, one of the attorneys circulated an unconfirmed news story that all civil trials in progress in LA would be suspended. For several hours it appeared that our trial might be over. Later that day, however, the Presiding Judge announced that the Court was merely “scaling back” operations - but also declared that judges who have jury trials in session had the authority to continue the trial or declare a mistrial. After circulating this, one of the attorneys proposed that we attempt to finish closing statements the following day. At least one other attorney agreed. Though it seemed impossible given the issues with experts and the fact that a few witnesses were still left to testify, I nevertheless prepared as though I would be giving my closing the next day as well. Given the circumstances, it was too difficult to predict what would happen and I needed to be prepared for anything. I was up until 3:30 am preparing for what might now be a very compressed final day of trial.

At the same time, I was concerned about whether the jury — assuming they showed up — could be expected to deliberate the case and render a fair and reasoned verdict. It turned out I didn’t have to worry about this problem.

March 16 - MISTRIAL (6.4k Confirmed U.S. cases)

On Monday morning, after years of litigation, months of preparation and one crazy week of trial, the judge informed us that he was declaring a mistrial. This essentially meant the trial was canceled and we would have to start over on a later date. A colleague accurately compared it to running a marathon and having the race called off in view of the finish line. The judge stated he did not believe the jurors should spend even one more day in the courtroom given the developments over the weekend.

It was impossible to argue against it, of course, and relative to so many people around the world losing friends and family members to this disease, a mistrial is not a big deal. Moreover, the next day the Presiding Judge would close the entire court and order jurors not to report for any trials, so a mistrial was coming no matter what.

But it was still a gut punch to me — and to all the attorneys that worked so hard on this trial, not to mention my client and the other parties who spent their money, resources and time to get that far.

In chambers, the judge said he could not tell us with any certainty when this trial could be reset. He guessed, however, that it would be at least six months to a year.

As we packed up the courtroom, the attorneys said goodbye and I was struck by the collegiality we all had for each other at that point. Just a few days ago, we were all yelling at each other in the court hallway about stipulations to admit exhibits at trial. Now we were bumping elbows and wishing each other well in the uncertain days to come. I think it’s safe to say that we had just tried a case together under the most unusual circumstances any of us had ever experienced. Personally, I can say without a doubt this was one of the most stressful, strange, exciting and, in some ways, sad weeks of my professional career. So I treated myself to a post-mistrial whiskey that morning.

Mistrial? Whiskey, please.

Here is a photo of the whiskey I had at my hotel after the judge declared a mistrial on Day 6 of trial.

ANYTHING CAN HAPPEN

Trials are the most exciting part of my job and every time I take part in one it makes me excited to do more, as each trial teaches you something about how to do it better the next time. This trial was no different; in fact, I think I learned more from this trial than any other I’ve participated in at any level. But I can also safely say that this trial reinforced a common mantra used by mediators to settle cases: avoid trial if you can, because it is unpredictable. This case certainly proved that mantra can be true and that literally anything can happen at trial — including a pandemic.

As of the date this is published, there are nearly 500,000 cases and 17,000 deaths in the U.S. according to Johns Hopkins University and Medicine. The U.S. now has more reported cases than any other country. It is difficult to gauge the ongoing impact that this will have on the civil justice system in California and other states, but it is clearly a seismic event that is changing everything for essentially all lawyers in the near future. With luck and hard work, including remaining dedicated to social distancing and other preventative measures, I’m confident that our country will get out of this and may ultimately be stronger in some ways for it.

In the meantime, our office remains open, with the ability work remotely and adapting in other ways to the ever-changing circumstances this pandemic presents. We will continue to advance the causes of our clients and look forward to helping you however we can with your legal needs — even during the current crisis.