We are now one year into the Covid-19 Pandemic. And I can’t even believe I just wrote that sentence. One entire year. I confess that when we first went into lockdown back in March 2020 (remember that?) I foolishly thought maybe the entire thing would be over in a month or two. Boy, was I wrong! I have been able to adjust to virtual everything to keep my cases moving. Zoom depositions, Zoom hearings, Zoom mediations, Zoom podcast taping (See You In Court), Zoom everything but a Zoom jury trial. And that’s where I draw the line. The Chief Justice of the Georgia Supreme Court just extended (for the 11th time) the suspension of jury trials (both civil and criminal) for another month by Declaration of Statewide Judicial Emergency. Many judges and lawyers haven been working to find a way forward to get out jury trials started back. The consensus is that backlogged criminal trials will be first in line, followed by civil jury trials. One of my friends and fellow trial lawyers makes a good point: why should criminal trials go ahead of civil trials as long as the accused person is out on bond awaiting trial? Justice for our civil case clients if just as important as Justice for crime victims and society. But I haven’t really heard anyone explain to me yet why criminal trials will go first once we get jury trials back up and running. Today I was in a meeting with a judge who said she didn’t think civil jury trials would be back until 2022. That would be two whole years without civil jury trials. Fortunately, in many of my cases I have been able to move the ball forward, resolving numerous cases through Zoom mediations and some through just good old-fashioned settlement negotiations. But for those cases I cannot resolve, the only hope for resolution is a jury trial.
In that same conversation with a Fulton State Court judge, she mentioned there may come some point that parties will be ordered to conduct a trial before everyone is vaccinated and while we are still required to wear a mask and social distance. I haven’t seen that yet and, hopefully, won’t be faced with that, but, for now, if I am ordered by a trial judge to do so I would have to object. There are numerous reasons why that have convinced me it is not in my clients’ best interests to move forward with their one and only jury trial in their one and only case until the Pandemic is completely over, finished and done with. For good. I have been asked about this not only by other lawyers, but also by numerous non-lawyer friends (yes, I have some of those) as well. It seems to be an interesting conversation starter.
So why do I think it is not in my clients’ best interests to have a jury trial now during the Pandemic? Without going into too much detail, here are just a few:
- Masks hide a juror’s reaction to voir dire, to the evidence I am presenting, to whether they like my presentation, or just don’t care. I cannot get a good read on how they are receiving the case. I miss certain cues from body language that are critical.
- Jurors who must keep social distance from each other cannot possibly form a cohesive group that must go through detailed evidence and reach a unanimous decision. It is simply not possible. This means only dominant personalities will control the jury. Non-dominant personalities will become mere fillers, without much say in the verdict and will just “go along.” This is not good for a sound verdict, nor is it good for jurors’ experiences with jury duty.
- Jurors who have pre-existing conditions or co-morbidities may still fear coming to a courthouse and spending entire long days with numerous other people indoors for fear of contracting the virus they have, so far, fought so hard to avoid. If a judge excuses that juror for his/her good faith fear, this means the folks who will show up for jury trial will likely be individuals who have never feared the virus or never taken it seriously in the first place. There is a perception that these individuals who may think the virus is a hoax, or that wearing a mask violates their rights, are not good jurors for my clients.
- Taking off those jurors who still fear contracting the virus means, most likely, excusing older jurors, jurors who are caregivers to others with medical conditions, jurors who have their own problematic medical conditions, jurors who have small children at home, etc. These justifiable excuses will leave a skewed jury pool that does not accurately reflect the community and does not give a valid constitutionally required cross-section of the county. As such, it would unconstitutional and not in my client’s best interests.
- Let’s say we begin the trial and get through all of my side of the case when a juror comes down with the virus. Now that juror (or court personnel) must quarantine but, more importantly, has now exposed everyone in the courtroom to the virus so now we must all quarantine and pray. I would be forced to move for a mistrial. That would come at a time where I have already incurred almost all of the costs of the trial for a plaintiff and moreover, exposed my arguments and presentation of my case to the defense. I will have shown my entire hand to the defense for the next time when we try the case. This would be inherently unfair to my clients, both from an expense standpoint and also a strategic standpoint.
- Can a State compel a citizen to appear for jury trial when it may result in that citizen’s death? Or the death of that citizen’s loved one at home? How could a juror possibly keep his/her mind focused on the evidence while wondering whether he or she is contracting a deadly virus? (That’s a rhetorical question because I don’t think it can actually be done).
These are just some of the numerous reasons why I do not believe a jury trial is in my clients’ best interests right now while the Pandemic rages. Georgia had it’s highest rate of deaths per day just this past Friday at 179. Being inside with a large group of people who are not your family is considered by the CDC to be one of the riskiest activities you can engage in right now. That’s exactly what jury duty is: spending time with a large group of people who are not your family indoors. And most of our metro Atlanta state courtrooms have no exposure to the outside, no windows, no fresh air. We have had at least three Georgia judges die due to Covid-19. In fact, Newton County just celebrated the naming of the Judicial Center to the Horace J. Johnson Jr. Judicial Center on Friday, Feb. 5. Judge Johnson was one of the judges who died from Covid-19. Many lawyers and judges have been working together on a Covid-19 Task Force to address many of the issues involved, some obvious, some not-so-obvious. I certainly appreciate and applaud their efforts. Both criminal defense and civil trial lawyers have been working with the Courts to create guidelines for when we have jury trials return. These guidelines are extensive and thoughtful. The Judicial Council of Georgia has created a detailed 64 page report of Guidelines, Best Practices and Resources for conducing court during the Pandemic. Lawyers, judges, physicians and court administrators sat on this Judicial Covid-19 Task Force and we are all grateful for their time and work.
This pandemic is far from over. It is something I think about constantly. I so wish we could get back on track with civil jury trials. But I think that must wait until the Pandemic is over and most citizens are vaccinated. My clients get only one trial, and hopefully, it is the only trial of their lives. As I often tell jurors during closing arguments, there are no do-overs. They are the only jury for my client’s only trial. We can’t gamble with that one shot at Justice.
Robin Frazer Clark is a trial lawyer who pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia, a Past President of Georgia Trial Lawyers Association, a Past President of the Lawyers Club of Atlanta and has practiced law in Georgia for 30 years. She is a member of the International Society of Barristers and of the American Board of Trial Advocates. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. She is the Co-Host of the Podcast “See You In Court,” sponsored by the Georgia Civil Justice Foundation.
Robin Frazer Clark ~ Dedicated to the Constitution’s Promise of Justice for All.