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The Boyk Brief
Trial by COVID: How Does a Jury Trial During the Pandemic Work?
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In this episode, our firm owner Chuck Boyk sits down with insurance defense Attorney Shannon George, an Attorney at Ritter, Robinson, McCready & James, Ltd. Shannon is one of the very few attorneys in the state of Ohio to have tried a civil case before a jury during the pandemic! She shares details about the safety measures put in place and walks us through each stage of the trial. She also tells us how the trial almost came to a crashing halt when a juror was exposed to COVID-19.
Welcome to the Boick Brief. I'm Desmond Stru, Marketing Director at the Charles E. Boyk Law Offices, located in Toledo, Ohio. The Boick Brief invites you to go into chambers with the attorneys of Boyk Law as we explore real legal cases, talk to fascinating people in our area, raise awareness about community initiatives, and share helpful information about protecting yourself and those you love. In this episode, our firm owner Chuck Boyk sits down with attorney Shannon George to talk about something normally quite common in the legal world that COVID-19 has made exceptionally rare: a jury trial. Shannon is one of the very few attorneys in our area to have tried a case during the pandemic. She shares details about the safety measures put in place and how the trial unfolded. She also tells us about how the trial almost came to a crashing halt when a juror was exposed to COVID. All this coming up on the BoIC Brief. Welcome to the BoIC Brief. Thanks so much for being here. And Chuck, I believe we have a very special guest today.
SPEAKER_01Right. I'm really happy today that we have with us Shannon George. Shannon has been one of the uh most respected and top insurance defense attorneys in Northwestern Ohio for the last 25 years, one of my most respected opponents, and she's one of the few attorneys in the state of Ohio that has tried an extensive jury trial since the COVID-19. Shannon, could you tell the folks listening a little bit about your background and how did you end up being an insurance defense attorney?
SPEAKER_02Sure, Chuck. First, pleasure to be here. Thanks for having me. My name is Shannon George. I'm an attorney at Ritter, Robinson, McCready and James, which is an insurance defense firm located in downtown Toledo. Originally, I am a graduate of Clay High School in Oregon, Ohio. And from there I went on to Hillsdale College, where I obtained my bachelor's in psychology. And when I determined that I didn't want to go on in that field, a professor recommended law school to me. So I attended the University of Toledo and obtained my law degree. And following that, I actually went back and received a master's degree in philosophy with an emphasis in ethics. After that, I taught for a short period of time as an adjunct professor at UT and eventually settled on full-time practice as an attorney. So that's how I got into the legal profession. My original job was with a firm that did a general practice. So I had plaintiff's work, bankruptcy, juvenile criminal, pretty much ran the gamut. And I determined that I wanted to focus my efforts a little more on one specific area. And I started working with Ritter Robinson in 1999 and have been there ever since.
SPEAKER_01So, Shannon, a lot of people have insurance coverage, and then they get somebody like me who sues them and they really don't understand the pro how the process works. How do they get an attorney? Why don't you explain when the bad plaintiff's attorney like me sues them? How do you get involved in the case?
SPEAKER_02Sure. A lot of times what happens is people will receive a claim, and frequently the plaintiff's attorney, such as yourself, have already been in communication with the insurance carrier for that individual, particularly with things like auto accidents or slip and fall. So the insurance company has a claim, and when suit is filed, they contact us and ask us if we will represent the insured and their interests in the litigation. So then that starts us on the process of responding to the pleadings, engaging in discovery, and all of the things that come with the litigation process. Sometimes we find that people are a little confused about the relationship between their insurance company, our office, and themselves. But primarily our obligation is to the insured to do what's right by them, to do the best that we can to defend the claims against them, minimize damages, do what we can to obtain a good result for them and conclude the litigation, either through the settlement process or if need be a trial.
SPEAKER_01So even though you're paid by the insurance company, your loyalty is owed to the individual client.
SPEAKER_02Absolutely. And as a matter of fact, the state of Ohio a few years ago required insurance defense counsel to give the clients what we call an insured client's statement of rights. And that explains that relationship between the insurance company and the insured and counsel. So, yes, we are being paid by the insurance company for our services, but we stay in communication with the insured and work with them hand in hand or their personal counsel if they choose to have personal counsel involved as well.
SPEAKER_01Thanks for sharing about your background and about what you do. Um it's a pity uh you don't have more interest.
SPEAKER_02I hear that from people all the time.
SPEAKER_01Our world as attorneys essentially changed after COVID-19 because there's a lot of courts and counties in the state of Ohio that don't try jury trials right now, and there's some counties that do. So, Shannon, you're uh quite rare in the legal world among lawyers. You've actually tried a jury trial during COVID. My understanding is uh your case involved a case in Wood County, Ohio that you tried, was it in July?
SPEAKER_02It started July 27th and ran through August 11th.
SPEAKER_01So why don't you explain a little bit about the background of the case? And um originally I'm assuming that your case was scheduled well before COVID-19.
SPEAKER_02Actually, it was a case that originated about five years ago, and it was a construction claim involving a builder and it was a residential home. Um, we had engaged in extensive discovery over the years. We had done multiple depositions over the years. Uh, motion practice had happened, and we had actually even been up to the Court of Appeals and sent back to Wood County for adjudication. Um, so originally the case was set for trial in 2018. And when it went up on appeal, that stopped. When it came back down from the appeal, then we were scheduled for trial in July of 2020. Um, and then COVID happened. And so it became a question as to whether or not we were going to be able to actually have the trial at all. And certainly, as we all know, as practicing attorneys, around March, when the shutdown order went into effect, we really did literally shut down for a period of time. People were not in their offices, doctors were not seeing patients, um, you know, experts were not presenting themselves for depositions, courthouses were effectively closed. So, you know, that all started in March, and as we approached the July trial date, it was really a significant question as to whether we would be able to move forward even with restrictions. Um at that point, the judge did call us in for a final hearing on uh pending motions, pretrial motions, and explained what the courthouse protocol was going to be that included daily temperature checks of everyone coming in and out of the courthouse, uh, COVID questioning of everyone screening as they came in and out of the courthouse. We discussed things like how you would handle exhibits. Um, at one point, we were expected to have eight sets of exhibits for the individual jurors when they would go to deliberate, but with this being a construction defect case, the exhibits were thousands and thousands of pages. So that had to be revisited part way through. But we were to be masked at all times unless we were the one questioning a witness. The witnesses could remove their mask once they reached the stand. Jurors would be masked throughout the entire trial. Extra space was added to the jury box so that jurors could space out. Voir deer was done differently normally. Vordeer selection of jurors would take place in the jury box. We had the jurors sitting in the gallery. So we turned counsel tables around and faced the gallery. They were spaced out and masked as we did the voidier process. There were extra cleaning methods in place with the staff and security in terms of every break from the trial. They were cleaning tables, cleaning chairs, cleaning doorknobs. There were just a lot of extra procedures in place. We even went so far as to have all sidebars, all objections done in chambers.
SPEAKER_01So let me ask you a couple of questions. So in Lucas County, for example, I'm not sure if there have been any civil jury trial since COVID.
SPEAKER_02I don't believe that there have.
SPEAKER_01And in Wood County, there's your case that lasted how long? 11 days. 11 actual trial days. And have there been other civil cases in Wood County?
SPEAKER_02It's my understanding that there were one or two bench trials conducted.
SPEAKER_01So no jury.
SPEAKER_02Not to my understanding.
SPEAKER_01So in this case, one of the initial issues would be is that a lot of potential jurors would not show up. So why don't you explain what happened in your case?
SPEAKER_02Sure. Um when a jury trial is coming up, as we know, the uh court will send out a list of potential jurors. And I believe uh my recollection is that the list had somewhere around 40 or 50 names on it. Uh the normal jury questionnaires come back with the basic information for the jurors. And then Wood County implemented a second questionnaire that was sent concerning COVID, asking the jurors whether they had issues with regard to coming in for a jury trial, whether they lived with a compromised individual, whether they were an essential worker, any other explanation that they wanted to give. So we had two questionnaires instead of one. And from that, they were also provided information that said they could defer their jury service an extra time this calendar year due to COVID concerns. Some of the pool took the court up on that and deferred and did not come in for voir deer. But we had, I think it was 33 total come in, but they were brought in in small groups. So each group was going to be 20. I believe we had 18 in the morning and 15 in the afternoon.
SPEAKER_01When you're picking a jury, that's often the most important part of a jury trial is who you have on the jury. So when you were questioning the jurors, you were not wearing a mask?
SPEAKER_02When we were questioning the jurors, we were permitted to take our masks off.
SPEAKER_01Were the potential jurors wearing a mask? They were. So one of the things we're often taught as lawyers is to look at nonverbal communication and just trying to get your gut reaction of the jurors. So if they're wearing a mask, didn't that interfere with your ability for your gut reaction?
SPEAKER_02It was a little difficult. And I will say that it was less of an issue during jury selection and more of an issue during the actual trial itself. Matter of fact, um, one of the staff members told us that that was one of the complaints the jury had about us having masks. They said, we can't tell whether that individual is smirking in response to a question or an answer. We can't tell if they're sticking their tongue out at the witness. They they couldn't read our expressions, and that bothered the jury. And it's the same when you're trying to read the jury once they're seated. It was a a little less of an issue during the actual selection process.
SPEAKER_01So did the judge wear a mask?
SPEAKER_02He did, unless he was addressing the jury.
SPEAKER_01And so the attorney who was speaking was not wearing a mask, and the witness was not wearing a mask.
SPEAKER_02Yes. Otherwise, everyone they were told that if they wanted to take it off, get a little air, uh, if you wanted to take a drink of water, you could remove your mask. So that was permissible. And you saw people taking the judge up on that offer over the trial, but it was intermittent.
SPEAKER_01So typically in a civil jury trial, what you have eight civil jurors, and then what did they have, two or three alternates?
SPEAKER_02Uh rather than the normal one alternate that you would expect, we seeded an extra. And it was actually good that we seeded 10 because we lost two during the course of the 11 days. One actually had to go into quarantine in the middle in between our first and second weeks of trial.
SPEAKER_01So normally you have the jurors that are sitting right next to each other. How far away were these jurors from each other?
SPEAKER_02Uh, because they added an extra row of chairs in front of the jury box and put blue tape on the floor to delineate, um, I believe that they were approximately five feet apart.
SPEAKER_01And when they deliberated after the case was over, the jury got the case, were they in a bigger room or how did they deal with that issue?
SPEAKER_02Throughout the entire trial, the courtroom was the jury room. So, in effect, at every break where normally as counsel, I might sit at the table and organize my materials for the upcoming witness, reorganize my thoughts, make a few notes, we left the courtroom. That became their space so that they had room to space out and be apart from one another rather than being confined to a jury room. So we would go to a conference room down the hall, my client and I, with whatever materials we wanted to talk about. And then we would come back after lunch breaks or after each break. And when they went to deliberate, the courtroom was the jury room. We turned off the security cameras and gave them the entirety of the courtroom with all of the exhibits and information.
SPEAKER_01So one of the issues that I've heard attorneys talk about is that perhaps you would not get a jury of your peers because older people would not wish to be on a jury. So typically I've seen on most of the juries that I've tried, you get a lot of people, let's say over 55 or 60. And now that I'm over that age, I guess I don't think that's old. But what percentage of your people were, let's say, over 55?
SPEAKER_02Within the jury pool, surprisingly, a great number. Um, in fact, one of the individuals who was most eager to indicate he would serve was someone who was probably around 65 and had multiple health issues and was absolutely 100% willing to sit on that jury if he was selected. The actual jury that was seated, I think probably our age range went from around 40 to about 70.
SPEAKER_01So you've been trying cases for over 25 years. What differences did you take in your approach to trying this case?
SPEAKER_02Objections. That would probably be the biggest difference. Um, fortunately, because of things like technology, you didn't have to give up exhibits because you could put them on the projector, they would go up on the screen, the jury could see them. Uh approaching witnesses went away. You didn't approach the witness with a document because you could put it on the screen and they could see it from the witness stand. So there was very little of that interaction where they there's normally that give and take and back and forth with witnesses. But when you know that most objections are being handled in chambers and it requires two attorneys, the judge, and a court reporter to all remove themselves from the courtroom, go into chambers to handle an objection, and then come back, it adds to the time for the trial. It annoys the jury. And so you have to be a little more selective in what you choose to object to.
SPEAKER_01So did you decrease your cross-examination or direct examination or opening or closing because of that, or increase it?
SPEAKER_02You know, I wouldn't say that it affected so much opening or closing. I don't think it really affected direct and cross. We had one witness was on the stand for a solid two and a half days. And the one thing I will say that was interesting to me was this was a courtroom where the jurors were permitted to ask questions. So the fact that we couldn't see their faces to get that gauge of the temperature in the jury box, so to speak, was sort of counteracted by the fact that they were allowed to ask questions. So you did really know what they were thinking ultimately, even if you couldn't see it on their faces during examination.
SPEAKER_01So, so normally I've been in situations where the jurors, some judges allow the jurors to write out a question and then the judge asked the question. You're saying in your trial, they actually let the jurors stand up and ask questions?
SPEAKER_02No, it was in it was in writing. So all of the jurors were instructed to write down their questions, or if they had no question to write, no question. The bailiff came around with a bucket, collected all of the pieces of paper. We went back into chambers, dealt with which questions would be asked and if the form was correct, and then we went back out and the judge asked the witness the question as it was written. So that was the process for that.
SPEAKER_01Um, you're saying as far as opening and closing statements, did it impact either the substance or the length?
SPEAKER_02I don't think that it really did on my side. Um, opposing counsel mentioned COVID a couple of times in his opening and closing, which, you know, it's not really what the case is about. So I tried to avoid it, except in Vordeer, and except when we lost a juror in between our first and second week who had to go into quarantine because he had contact with someone who called him and said, Hey, I've had a positive test. So when we did that, we had to essentially notify the other jurors, make sure they were comfortable with going forward, which, you know, you're flying by the seat of your pants. None of us have ever been in this situation before. So when we get called back in from lunch by the judge to say, okay, we've had it happen. Here's what's going on. We couldn't get the health department on the phone because it was lunchtime. We couldn't get an answer from anyone as to what the proper protocol was. Eventually, we made the juror go on the record to explain the situation because you want to protect your record in case something comes up for appeal. Uh, so we put him on the record outside the courthouse on a back patio with the court reporter to explain the situation, and then he was excused. So then we went inside and said, now what do we do with the rest of the jury? And we had to explain to them what had happened without giving away too much under HIPAA, and at the same time make sure that they were comfortable moving forward. So we actually did almost a mini voir deer of the remaining nine after we went on the record with the one that was excused to make sure that they would continue to be able to focus on the witnesses and the evidence and not be thinking about, hey, am I at risk? Am I going to be starting to show symptoms, et cetera?
SPEAKER_01And none of them asked to be taken off the case?
SPEAKER_02Nope. They were perfectly comfortable with continuing. And because of some of the extra time constraints with COVID, I mean, Vordeer took us almost a day. So we got through Vordeer and opening the first day, but with objections and breaks and things taking longer for the extra cleaning and, you know, sidebars all in chambers. The trial lasted longer than what we voardiered the panel on. We told them it would be seven days. It was 11. And on the day of deliberation, they stayed till 10 o'clock at night. So it was much longer than expected. And one of our jurors had a prepaid vacation starting the third week that we would be in the courthouse. So we had him excused on that third Monday after everyone else called in and said, nothing happened to me over the weekend, and I will be there when I'm supposed to be there this morning. So we excused our second alternate and then just held our breath for the last few days. But everyone else was willing to stay, and they did not seem to have an issue with knowing that a fellow juror was being excused.
SPEAKER_01So you had your five-year case. Why don't you tell the audience uh essentially what your result was?
SPEAKER_02Uh the claims against my client, there were seven different claims from the plaintiff's perspective, including breach of warranty, breach of contract, negligent infliction of emotional distress, basic negligence, fraud, fraudulent misrepresentation, and punitive damages. Um we received a defense verdict on all of the plaintiff's claims, and my client had a counterclaim pending back against the plaintiffs for defamation, and the jury awarded my client $25,000 plus a dollar in punitive damages and attorney's fees.
SPEAKER_01So basically, you hit a grand slam home run.
SPEAKER_02It was a good result for the client.
SPEAKER_01So what would you recommend to your fellow attorneys if you were trying a case in the land of COVID in 2020 or 2021? What advice would you have?
SPEAKER_02I think probably to think carefully about limiting the issues that you want to present, because with the extra time constraints for all of the new processes, I think jurors' attention spans that were already somewhat limited for some of our issues may be a little more so. So I think in our case, we had to take the time because of the extensive number of documents, photos. We had four experts come live. You know, there were lots of things that had to be done for the nature of the claims. But if there's any way to limit it and stay succinct, direct to the point, I think jurors will appreciate that even more than they already did.
SPEAKER_01Now, do you actually have any other jury trials that you think will go in 2020?
SPEAKER_02You know, I still have some on the books here in late September into October and November. But we've had sort of the nudge nudge wink wink discussions with the judges saying, look, we've got a backlog of criminal cases that have to take priority over you because there are constitutional issues that come with that. So I suspect that in most of those cases, Counties, we are going to get kicked out into 2021. A lot of judges have already started doing that. Some want to keep the trial date until you show up for your final pretrial in the hopes that they can convince everyone to settle a case. But I think that common wisdom at this point is that it's unlikely that very many more civil trials will happen in 2020.
SPEAKER_01Did the judge in this case give you the option to continue the trial date? Or he basically said, you guys are trying the case?
SPEAKER_02When we went in the Friday before the trial was to start for the hearing on the motions, he explained the procedures that the court had put in place. And rather than asking if we wanted to go forward, the question that we were asked is, are you comfortable with those procedures? And counsel and I looked at each other. And I think at that point it was almost a big game of chicken. Like, is anybody going to say, I don't want to do this? And we both said, that sounds great.
SPEAKER_01And and your judge in this case was Judge Rieger.
SPEAKER_02Yes.
SPEAKER_01Okay. And I know Matt from when he was a prosecutor in Bowling Green Municipal Court. And he's somebody that's actually tried a lot of cases as a prosecutor. And I know that he actually loves trying cases. And he's told me before that he's a little disappointed that he doesn't get to try as many cases as he thought he would.
SPEAKER_02Yeah. And I, you know, he did a great job. I can't say enough about his demeanor as a trial judge. And the staff was amazing. Um, the court reporter, the bailiff, the security, everyone was fantastic in trying to do what they could do to make the process easier and smoother for everyone. It was just, it was a difficult process. And when you're used to doing things a particular way, and you know, after you try cases for 20 years, you have a particular way that you're used to doing things. It's very different to do things now, the way that we have to do them. And just for example, even things like sitting at counsel table with your mask on, when plaintiff's counsel has his witness on the stand for an entire day and you have a mask on your face the entire day, it affects your breathing, you're warmer. You know, I had a bottled water sitting on the table. What I found was I wasn't drinking water because you have to take your mask off to drink the water. And so by the end of the day, you're dehydrated, you're more tired. It's it's a lot more difficult to do it. Um so there are just things like that that are very different in terms of trying a case under the current circumstances.
SPEAKER_01Well, thank you very much, Shannon. I appreciate you telling the audience uh about your background and especially uh the secrets of trying a case uh during COVID 19.
SPEAKER_02Well, thanks for having me.