Trying Times During COVID-19: A review of the risk-versus-benefit analysis of whether to try individual cases… and when.


This article originally appeared in the Fall/Winter 2020 issue of Voir Dire, a publication of the American Board of Trial Advocates. 

by David P. Glover

The Chicot County Courthouse in the town of Lake Village, Arkansas, sits on the western shore of Lake Chicot, a glistening oxbow lake in the far southeastern corner of Arkansas.  From the front steps of the courthouse, beyond the parking lot, the veterans’ memorial and a small amphitheater, houses line the eastern shore of the lake facing back toward the town. Beyond those homes lies a few miles of dark, alluvial farmland and then the Mississippi River which roils towards the Gulf. To the west of Lake Village are miles and miles of more delta farmland. It’s a beautiful setting.

Dr. Mayfield and I were standing underneath a yellowing Gingko and two Southern Magnolias on the courthouse lawn, their red seed pods lying all around, while awaiting the jury’s verdict.  It was November 5, 2020. We had just completed the first civil jury trial I know of in any Arkansas state court since the COVID-19 pandemic shuttered the courts in March.  The sun shone brightly. The only visible reminder of the pandemic was the masks on the hospital staff supporting Dr. Mayfield who loitered outside with us.

Three days earlier, on November 3, Election Day, 28 out of 45 jurors who were summoned for jury duty arrived at 8:00 am as instructed.  Josephine Griffin, the Circuit Court Clerk, met each potential juror at the building entrance and took temperatures. Deputy sheriffs escorted each person to the upstairs courtroom.  The courtroom into which we all piled is a large rectangular box with high, water-stained ceilings aglow with fluorescent light.  Like most courtrooms, the gallery took up the back half of the rectangle. The gallery is divided by an aisle that bisects two sections of 10 rows of church pews.  In the front half of the rectangle, a long counsel table faces the bench, court reporter and witness stand. To the right of counsel table is the jury box. The deputy sheriff escorted the first potential juror to the first row of the gallery, spacing each new arrival at pre-marked intervals.  Judge Bynum Gibson had court staff designate where jurors were not to sit by taping white x-marks so that people would be socially distanced.

While the venire gathered, Judge Gibson called the attorneys into chambers, which in normal times is the jury room. The jury room sits atop the southeast corner of the courthouse overlooking the lake. Had I been there years earlier, I would have preferred being on the lake fishing. But, on this morning, in my 21st year of trying cases,  I was fully present in the moment.  My last trial had been in January. Then, when the pandemic hit, 12 cases set for 2020 were continued — all except this one in Lake Village.  So, instead of wishing I was there to fish, I was grateful to have a career as a trial lawyer.  And, any resentment based on fear of trying this case during a pandemic had transformed into gratitude for the judge nudging the trial forward.  The anxiety about who would win the election, whether there might be rioting, or concern about the pandemic— all of this faded away in order to focus on trying the case safely, efficiently and effectively.

In chambers, the defense renewed a pretrial motion that had already been denied. It concerned the identification of the hospital’s insurance carrier as a named defendant instead of substituting the hospital as a named defendant. The judge affirmed his previous ruling denying the motion, then instructed us that the trial would run from 8:30 am to 4:30 pm daily with a one-hour lunch break.  We were reminded that, unless we were at the lectern, we were to wear our face masks.  We asked how many alternate jurors we could have and were told one. We asked what to do if anyone present in the courtroom became symptomatic during the trial. The judge, in essence, told us we would deal with that problem if it happened.  We asked how to deal with bench conferences and were told there would be none.  The judge limited voir dire and opening statements to 15 minutes for each side.  With those preliminary matters resolved, we returned to the courtroom to select a jury.

With 28 potential jurors, court staff and attorneys in the courtroom, the space looked and felt full.  Everyone wore masks and spread out as much as the space allowed. Prior to the trial beginning, Judge Gibson had the county install approximately four-foot high transparent plexiglass panels along the rails separating the jury box and gallery so that, at least in a sense, the jury and spectators would be shielded from the witnesses and attorneys.  Likewise, the witness box was surrounded by plexiglass on each side and in the front. Each witness sitting behind these plexiglass shields looked like a defendant in a European criminal trial — caged.  The clear plexiglass along the rail of the jury box made it feel, at least to me, like the jurors were in a different room. As the judge read the statement of the case, I thought that from the jurors’ perspective behind the plexiglass screens, it must be like watching TV or like they were observing a marketing test behind a one-way mirror to see what product sold best.

The judge then introduced the parties and their attorneys and asked the jurors if they knew anyone.  In compliance with the judge’s instructions, Dr. Mayfield and the hospital had already identified former patients and former hospital employees from the jury pool and those people were told not to come.  Jurors with health issues were also excused before having to appear for duty. Each party was given 15 minutes to question the entire panel.  The time constraint made it difficult to cover everything I might normally have tried to achieve. Some jurors wore ballcaps and others wore glasses. All wore masks, which made non-verbal gestures (that I typically react to intuitively) almost impossible to recognize. When a person is wearing a mask, it is much harder to discern facial expressions or even whether someone was looking up, down or sideways in response to questions.  People, I have noticed, tend not to make eye contact, especially with strangers, when they have on a mask. This required asking direct questions of as many people as possible and limiting the topics to those essential to our defense. Not a single person requested to be excused because of a health concern over COVID-19.

Prior to trial, counsel for the plaintiff — a very experienced trial attorney — and I both reviewed the American Board of Trial Advocates (ABOTA) white paper and its recommendations for COVID-19 trials. My staff prepared a separate set of exhibits for each of the witnesses and jurors. This added expense to the trial, but we felt that we had to be prepared for anything especially if our technology failed. Plaintiff’s counsel and I also agreed on the authenticity and admissibility of all exhibits before trial, including all of the patient’s medical records and pertinent medical bills. We also shared technology and each used Trial Director, a program that employs a bar code scanner to easily zap and project records onto a screen. By agreement, we published exhibits and testimony for the witnesses and jurors to review in order to avoid having to approach any witness. To a large degree, this negated the need to lay a foundation before publishing information to the jury and sped the trial up considerably. The technology worked, and we never had to utilize any of the voluminous paper copies that we had prepared.

Our opening statements, also limited to 15 minutes each, set out the competing theories.  The patient who died had been a remarkable woman.  She had raised three children (all now adults) in Dumas, a town 40 miles north of Lake Village.  While the deceased was in declining health, plaintiff’s counsel argued she still enjoyed life at home with her youngest son and caregiver.  Her untimely death was the result of an avoidable surgical error that happened because the defendant surgeon went too fast when he put the feeding tube through the colon while passing it into the stomach because he selected a placement site too low in the patient’s abdomen.

“Three physicians will testify in this case” I began in my opening.  “One is an expert for the plaintiff and the other two are Dr. Mayfield and his expert.  All three witnesses will testify in agreement about three things: first, no surgeon can ever guarantee a good outcome; second, all surgery carries risk; third, an accepted risk of this surgery, which was disclosed, is injury to the intestines.” I told the jury about the patient’s very poor health, about our expert’s expected testimony and about Dr. Mayfield himself.

Witness testimony lasted through the morning of the third day of trial. Each witness wore their masks until seated and then, after being sworn and seated in the plexiglass-protected witness box, removed their masks. The attorney conducting the witness examination, likewise, could remove their mask while asking questions. The expert witnesses and the defendant physician, at varying points, had to leave the witness stand during their testimony. The plaintiff’s expert left in order to physically point to a medical illustration. The defense expert left  in order to operate the software on my computer to teach the jury about relevant CT imaging. Dr. Mayfield left the witness box to demonstrate how to perform the surgical procedure that was at the heart of the lawsuit. None of the witnesses wore masks when they left the witness stand, but the attorneys were all socially distanced from them and the jurors were shielded by the high plexiglass walls.

The judge limited closing arguments to 15 minutes for each side plus an additional five minutes for the plaintiff’s rebuttal.  At 1:25 pm on the third day, we were adjourned outside so that the jury could deliberate in the larger space of the courtroom.  While standing underneath the magnolias and gazing at the lake, we debriefed about the trial. The bailiff then came downstairs to retrieve us for the jury’s verdict at 1:41 pm. The jury found for the defendant physician and for the hospital’s insurer, and the verdict form was signed only by the foreman, which meant the verdict was unanimous.

Surgeries carry risks of injury and even death that must be weighed against the potential benefits if they go as intended. In order to try this case, maybe for the first time since the last largescale pandemic in 1918, the court and the parties had to weigh the risks of someone being exposed to the virus versus the benefits of moving the civil docket forward and giving resolution and finality to the parties.

In a follow up call with the Circuit Court Clerk, she told me that none of the jurors, many of whom she knows, or court staff were exposed to the virus during the trial or ever became symptomatic to her knowledge.  Looking back on the experience, when jurors came into or left the courtroom, they did so single file, spaced at intervals that kept them separated from one another.  At lunch, I noticed that most ate alone in their cars and trucks or drove off to eat somewhere else.  Keeping the jurors shielded from witnesses and attorneys with the plexiglass screens and keeping them masked and socially distanced seems to have worked. Going forward, until a widely distributed vaccine eradicates the risk of exposure, the risk versus benefit analysis of whether to try individual cases will need to be made on a case-by-case basis. When trials do go forward, perhaps some of the processes successfully utilized in our trial will help.

In Lake Village, Arkansas, we allowed the justice system to do what it does — decide an outcome. In doing so, a plaintiff confronted the grief of losing a parent.  A surgeon confronted the grief of being accused of negligently killing a patient. A jury heard the proof and decided that the surgeon’s care was reasonable. We all confronted fear of the unknown — the fear that an invisible, aerosolized virus might infect some or all of us who were present in the small courtroom, and we took precautions to avoid that happening. That fear passed, fortunately, unrealized.  Dr. Mayfield and I walked out of the courthouse and hugged briefly.  We both then drove back to our own lives while the afternoon sun glistened on the oxbow lake that lies like a smiling backdrop against the small delta town of Lake Village.