by the HONORABLE DEBORAH C. SERVINO
In September 2020, the Orange County Superior Court commenced in-person jury trials and in-person and remote court trials for civil cases as part of its COVID-19 safety protocols. While the prospect of navigating an unfamiliar set of procedures in the midst of pandemic can be daunting, the purpose of this article is to provide a map for conducting civil jury and court trials in Orange County Superior Court for 2021.
1. Getting Into the Courtroom
If you have an in-person trial, entering the courthouse is different during the pandemic. The Court is strictly enforcing social distancing and is limiting the number of persons in the courthouse. As a result, it may take longer to enter the courthouse. Be prepared and arrive early. Have the courtroom’s telephone number handy in case you need to contact the clerk if you, your clients, or witnesses have difficulty entering the courthouse or are delayed.
2. Protective Personal Equipment (PPE)
Everyone must wear face coverings in the courthouse at all times. However, be kind to yourself. Not every face covering is created equal. Some of the more aesthetically-pleasing ones sometimes prove to be less than comfortable. Find a face covering that is professional, comfortable, and breathable that you are prepared to wear for the entire day while at court. Consider using masks that have some structure so that there is some space between your nose and mouth and the mask material. Constantly pulling up a drooping mask, feeling like it is sticking to your mouth while speaking, or feeling pain around your ears, will distract you from focusing on the trial.
Judicial officers may allow witnesses to remove their face covering or may allow the use of a party-provided clear face shield during testimony. Before trial starts, ask the judicial officer what will be allowed during the trial. If witnesses are required to wear face coverings during testimony, let your witnesses know to wear court-appropriate, comfortable, and breathable face coverings. If witnesses are permitted to remove their face covering or use a clear face shield while testifying, discuss with your witnesses during your preparation whether they are comfortable with removing their face covering or using a clear face shield. Bring face shields that are ready for use by your witnesses.
When witnesses must handle original exhibits or demonstratives, they will be given disposable gloves, if requested. Oftentimes, the courtroom will already have the disposable gloves at the witness stand.
Court trials are conducted remotely, unless ordered otherwise. Two copies of the joint exhibit binders must be delivered to the courtroom at least three days before the remote court trial. Because the Court restricts the number of persons in the courthouse, please contact the Department before having the exhibits delivered to the courthouse.
For a remote court trial, the party calling a witness is responsible for sending the exhibits to the witness. If you are sending an electronic copy of the exhibits, make sure that it is identical to the hard-copy exhibits sent to the courtroom. Counsel, the parties, and the witnesses should all have the same electronic copy of exhibits. Electronically bookmark each exhibit. That way, everyone can access the exhibits quickly. Once an exhibit has been admitted, consider using the share screen feature of the remote platform when discussing the exhibit. You can highlight and zoom in on key portions of exhibits in the share screen feature.
Being able to use technology in a competent manner is vital to conducting a remote court trial or when presenting remote witness testimony for a jury trial. Having a reliable, high-speed internet connection is important. Check the camera angles for yourself and your witnesses beforehand. To have a clear and consistent sound quality, counsel, parties, and witnesses should use comfortable headphones or ear buds with built in microphones or high-quality conference call microphone/speakers. If the microphone is on a cord, clip the cord to your tie, shirt, or blouse to eliminate sounds created by a swinging cord. There may be an echo if you are in a room with poor acoustics, which can create disruptive feedback.
Practice using the remote platform that will be used for trial and familiarize yourself with its features, such as sharing a screen, pulling up electronic exhibits, muting/unmuting yourself, and pinning participants in the gallery so you can always see them. Consider doing a test run or mock remote court trial with clients and witnesses so you can see how you, your client, and witnesses are seen and heard. If everything freezes, do not panic; try following the first rule of tech support: leave and rejoin the meeting, and call the courtroom to let them know your status so that they can readmit you into the proceedings if necessary.
5. Treat Your Location Like a Courtroom
Many people have been in Zoom meetings in 2020. Sometimes this familiarity may lead a person to forget that he or she is in a trial, rather than an informal video conference. For remote court trials and remote witness testimony for jury trials, the attorneys, parties, and witnesses should conduct themselves in the same manner they would if they were physically present before the Court. Counsel should be in professional attire, and parties and witnesses should be in court-appropriate attire. Make sure any filters are off and that an appropriate background is visible.
Like in a courtroom, everyone will see any facial reactions by all participants. You can communicate privately (i.e., via text or email) with your client during the trial, so long as your client is not on the “witness stand” and it does not interfere with the trial.
The location of counsel, parties, and witnesses should reflect the seriousness of a trial proceeding. In other words, there should not be competing noises or interruptions from others at your home or office. If necessary, arrange for your witness to testify from a deposition conference room or other quiet location that has a reliable, high-speed internet connection.
Set up your desk as if it were counsel’s table in the courtroom. Have your glass of water to sip. Have exhibits, joint trial notebook, Code books, pocket briefs, highlighters, extra pens, and post-it notes within your reach.
6. Refer to the Court’s Website
The Court regularly updates its website (www.occourts.org) with information, policies, and procedures relating to the COVID-19 pandemic. At the time this article was written, helpful documents on the website include: a one-page public resource guide on Civil Jury Trial COVID-19 Protocols; Process to Commence Civil Jury Trial; Civil Video Court Trial Guidelines; Civil Limited Unlimited & Complex Information & Appearance Process; and Zoom and WebEx remote hearing instructions. If you are proceeding with a civil jury trial, the Civil Jury Trial COVID-19 Protocols document describes answering ready for trial, courthouse access and safety, jury selection, public access and livestream, witness testimony, and exhibit presentation. If you are proceeding with a remote court trial, the Civil Video Court Trial Guidelines document provides a detailed description of the scheduling of a court trial, participation via video, public access to proceedings, witnesses, and trial exhibits.
Civil jury trials are livestreamed and accessible through the court website. You can view the livestreams to get an idea of how civil jury trials and jury selection proceed.
7. Manage Expectations
Just like before the pandemic, managing client and witness expectations is part of effective advocacy and trial preparation. You can share the documents available on the Court’s website and review the latest procedures that are designed to allow litigants and witnesses to effectively and safely conduct a trial during the current pandemic. This preparation will help reduce some of the anxiety that your clients and witnesses may be feeling about the trial. In closing, I hope that my Go Map assists you in navigating your way to a successful civil trial in 2021.
The Honorable Deborah C. Servino is a Judge of the Orange County Superior Court and is currently on the Unlimited Civil Panel. The views expressed herein are those of the author. They do not necessarily represent the views of the Orange County Lawyer magazine, the Orange County Bar Association, the Orange County Bar Association Charitable Fund, or their staffs, contributors, or advertisers. All legal and other issues must be independently researched.