OTLA Trial Lawyer Winter 2021

7 Trial Lawyer • Winter 2021 Remote hearings Perhaps we were already trending toward this mode of operation — great- er reliance on the internet — but that day was a whole lot further away before the pandemic forced our hands. For- merly, attorneys had to file a motion in order to request a single party or witness appear by phone for a single hearing. Now, in some instances, entire trials take place remotely, either by phone or by video conference. Nearly one hundred percent of all juvenile matters are being handled remotely, and, on occasion, even the judge appears from home, leaving only a clerk (or two) to remain in the courtroom and record the hearing. Now, over nine months into these changes, we are finding the default expectation has been flipped —many people are expect- ing to appear remotely and might be upset if asked to appear in person. Trial court judges spend years con- ducting court a certain way, building up a routine workflow that involves seeing people face to face. While the transition to remote court is great for minimizing health risks, it raises real challenges to consistency and fairness. As an example, let’s say you must make a child custody determination, and the 12-year-old child in question is a key witness. The child is currently living with one parent, and he or she is only available to testify by phone. This situation poses a serious concern of improper influence on the child witness, whether intentional or otherwise. Judges take the physical pre- sentation of any witness very seriously, and without the ability to view the child in person, let alone separate him or her from a possibly coercive environment, it quickly becomes difficult to make an accurate assessment. A similar issue comes into play with taking pleas over a phone or video con- nection. How can you be sure the person is paying full attention and is fully aware of the rights he or she is giving up? (You might think that would go without say- ing when a person is willingly pleading to a crime but spend a little time in court and you’d be surprised.) Jury trials and reopening We are heading into the second year of the COVID-19 pandemic, and plenty of activity has taken place every day at the courthouse for months now, so it feels beside the point to talk about “reopening.” The truth is, we never re- ally shut our doors, and we never re- opened so much as we adapted on the fly. If the puzzle is how to conduct court during a pandemic, then the final piece is to safely hold a 12-person jury trial. The right to a jury trial, especially in criminal cases, is a fundamental part of the carriage of justice in our country, and a key feature of a functioning court sys- tem. Ensuring the safety and comfort of potential jurors is, therefore, a top prior- ity for us, and not solely for their own benefit either. Of course, we care about protecting their health, but some have also raised the issue of juror bias creeping in. No one wants to be in a room with strangers now, and it is far from easy for jurors to give fair and impartial consid- eration to a serious case when they are concerned for their own safety. Thankfully, Clackamas County con- quered this hurdle over the summer. We are able to conduct jury trials once again by utilizing multiple courtrooms and restricting viewers in order to maximize our available space. At this point, I am confident the hardest work has been done. We have laid the necessary ground- work for remote and distanced court to become our new reality. Now, the next steps will be to ramp up our efficiency and start making a dent in that trial backlog. Judge Ulanda Watkins serves as a Clacka- mas County Circuit Court Judge. Her office is located at the Clackamas County Court- house, 807 Main St., Oregon City, OR 97045. She can be reached at 503-655- 8686 or [email protected].