3 Trial Lawyer • Spring 2022 1693, said, “To delay justice is injustice.” As far back as 1215, the Magna Carta declared, “To no man will we sell, or deny, or delay, right or justice.” There is good news. Civil jury trials are now moving forward in Oregon. As things change Until recently, our colleagues were trying cases with pandemic protocols in place. In March, Chief Justice Walters lifted the mask mandate in state courthouses. Now, precautions and practices in each county will likely vary. Multnomah County Presiding Judge Judith Matarazzo has made a commitment to set and hold more civil jury trials. InMultnomah County, the default civil jury trial involves virtual voir dire with an in-person trial with twelve jurors plus alternates. In a joint meeting with representatives fromOTLA and OADC, Multnomah County Presiding Judge Judith Matazarro acknowledged the importance to trial lawyers and their clients to have a date certain for trial. She expressed a willingness to consider jury trials with smaller jury panels by mutual agreement or other alternatives which could expedite the docket. One possibility — fully remote trials. Multnomah County Judge Eric Dahlin presided over a fully remote civil jury trial between OTLA member Stephen Voorhees and OADC member Glenn Barger. It was by mutual consent with a detailed pre-trial order. I am not aware of other fully remote civil jury trials in Oregon, but it is standard practice in other states. Some OTLAmembers were fortunate enough to get live jury trials after the pandemic hit in February 2020. Eugene OTLA members Tina Stupasky and Bryan Lessley had a dental negligence trial in Lane County in spring of 2020. Ralph Rayburn tried a motor vehicle crash case in Washington County in November 2021. That same month, our office tried a motor vehicle crash brain injury case in Lane County. Stephen Voorhees tried a medical negligence case with Bill Savage in Jackson County in December 2021. Stupasky shared with me it was important to know the COVID safety protocols before trial and to get clarification, if necessary, from the presiding judge before proceeding. Lane County required exhibits to be placed in plastic sleeves, for example. Live witnesses were behind plexiglass screens. Everyone in court was required to wear masks at all times. Angles As with all other cases, it is important to look at your courtroom set-up and figure out where your presentation media should be located for best results. If jurors are spaced around the courtroom, you’ll have jurors viewing your displays from a variety of angles. This complicates the decision on how to position screens and boards. There may be more witness testimony to present virtually. Stupasky had an outof-state witness appear remotely, and she reports it went well. The testimony was displayed on a courtroom TV using Webex. In our trial, we had an out-of- state neuroradiologist testify by Webex. He had created graphics of brain images with his markings on them to highlight areas for the jury. The doctor shared his screen. When he was talking about the brain MRIs, the jury’s attention was not split between the doctor and the exhibits, as the only image on the screen was the MRI. Stupasky noted one of the courtroom “upsides” to the COVID epidemic is we have grown used to seeing people talking to us on screens, “Jurors understand the circumstances. They are used to it.” She said jurors understand why an expert would not travel in these times and that does not affect their credibility the way it might have before. Risk v. reward The risk of screen fatigue and mask fatigue (for the jury, both wearing one and listening to others speak through one), may argue for a more efficient presentation of the evidence. A long, rambling cross-examination did not hit well before the pandemic. Wearing a mask does not help. Voorhees shared that both in his remote and in-person COVID trials, he placed a premium on efficient presentation of evidence, with shorter openings and closings. Rayburn said he placed a premium on speed and hitting of high points in his recent trial but still wanted enough time in voir dire and a generous enough sized venire panel to select a jury which would be fair to both sides. Social distancing may impact the size of a panel unless voir dire is done remotely or with a second remote courtroom, as is the practice in Lane County. In speaking with Stupasky, Voorhees and Rayburn, I was grateful to be a member of OTLA. As trial lawyers during a global pandemic, we are facing new challenges. We are engaged in problem solving as to how to represent our clients best under different circumstances, circumstances which continue to evolve. In all of this, we have each other. We can learn from each other, share our experiences, celebrate our victories and examine our set-backs. I invite those of you who try cases post-pandemic, regardless of the results, to share your case experiences with your fellow OTLA members. Lara Johnson is serving as president of OTLA. She is a shareholder in the Corson & Johnson Law Firm. She specializes in motor vehicle collisions, nursing home abuse and neglect, and medical negligence. She contributes to the OTLA Guardians of Civi l Jus t i ce at the Guardians Club Level. Johnson’s office is located at 940 Willamette St., Ste. 500, Eugene OR 97401. She can be reached at 541-484-2525 or ljohnson@corsonjohnsonlaw.com.
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