Lawyers and Judges Battle over COVID-19

By on December 17, 2020

Requests for COVID-19-related trial delays can lead to strife between lawyers and judges—and crazy things can happen. We see this most recently in San Bernadino, California, where a civil jury trial has been interrupted in the middle of jury selection. The Sun has the story, which we paraphrase:

An attorney who allegedly tested positive for COVID-19 amid San Bernardino County’s largest civil trial since the start of the pandemic claims court personnel failed to inform dozens of potential jurors that he may have inadvertently exposed them to the virus.

 

The attorney, who represents the defendants, made the claim in a motion, prompting the judge to halt jury selection until Feb. 15.

 

“The court refused to inform potential jurors that they had been exposed to someone contagious with COVID-19,” the Nov. 10 motion states. “Far from contact tracing, the court actually withheld information from those who may have been exposed.”

 

Plaintiff’s counsel, however, says that no jurors have been diagnosed with COVID-19, said an attorney representing the plaintiff. According to plaintiff’s counsel, the judge has been meticulous in following Centers for Disease Control guidelines to guard against the virus, requiring those in the courtroom to practice social distancing and wear protective face covers.

 

Defendant’s in-house counsel said: “The risks are just too high right now, with the dramatic increases in cases, and the lack of intensive care unit space in hospitals. The numbers are astonishing, and the judge made the right call in pausing this trial.”

 

The defendant has made repeated legal attempts to delay the trial due to COVID-19 concerns.

 

Last month, after the judge ordered jury selection to proceed, the defendants filed a petition with the California Court of Appeals seeking an immediate stay, expressing fear the trial could result in a virus super-spreader event. That petition and a subsequent appeal to the California Supreme Court were both denied.

 

The defendants’ reiterated their concerns in a motion last week, argument that Southern California’s COVID-19 infection rate is even more dire than it was a month ago. “Now is not the time to bring together a roomful of strangers for a non-essential civil trial,” the motion asserts.

 

The motion also states that the court failed to adhere to COVID-19 protocols following his own virus diagnosis.

 

On Nov. 18, other defense attorneys informed the judge that lead counsel, who was not present, had a headache and was experiencing chills. They added that lead counsel had been in the courtroom with dozens of jurors, lawyers and court staff over the course of several days just before he became ill.

 

Lead counsel had sat a little more than 6 feet apart from 85 jurors who took turns speaking into a microphone, according to the motion.

 

Upon learning of lead counsel’s symptoms, the judge said she hoped he felt better and wasn’t infected with COVID-19 before moving on to other trial-related matters, says the motion.

 

“The court then immediately proceeded to discussion of deposition designations without any consideration of whether it was appropriate for lawyers who had been in close contact with [the allegedly infected lawyer] to continue to appear in the courtroom alongside jurors and court staff, or whether the jurors who had been exposed to [him] just days prior should be notified of their risk”, the motion states.

 

Defendants’ lead counsel informed the court during a telephonic hearing on Nov. 25 that he had tested positive for COVID-19. However, that revelation was met with skepticism from plaintiff’s attorneys, who suggested that [defendant’s lead counsel] was lying about his COVID-19 diagnosis to delay the trial and also pressed for a copy of his test results, the motion says.

 

Defendant’s in-house lawyer said it is her understanding that the judge didn’t tell jurors they were exposed because she thought a sufficient number of days had passed from when they were in the presence of her infected colleague.

 

Other possible COVID-19 issues also surfaced during the trial.

 

On December 3, a juror came in person to the jury assembly room to report she had been exposed to COVID-19 and could be a carrier, according to the motion. Then, on December 7, a potential juror reportedly was coughing, sneezing and wheezing in the courtroom where he spent about 4 1/2 hours during jury selection.

 

“Jurors who had shared the courtroom with the possibly infectious juror the preceding day were not informed of the potential risk, and attorneys and court staff—who now themselves might be carriers of COVID-19—sat alongside the new day’s fresh batch of jurors,” according to the motion. “The failure to adhere to basic COVID-19 safety protocols during the past several weeks raises serious public health concerns.”

 

It was unclear regarding whether the individuals in the two incidents were diagnosed with COVID-19.

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McDermott’s litigation team monitors US courts as they reopen amid the ongoing COVID-19 public health crisis.

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