In this episode of Civilly Speaking, host Sean Harris talks with Sydney McLafferty, an attorney from Columbus, Ohio. Sean and Sydney discuss COVID-19 and its impact on civil litigation and the future of jury trials.

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Sean: Hello, I’m Sean Harris, and this is episode 57 of Civilly Speaking brought to you by the Ohio Association for Justice. Today is April 23rd and I’m here with our guest, Sydney McLafferty. Sydney ‘s an attorney in Columbus and is on OAJ’s Executive Committee, she’ll our next Vice-President in May. Sydney, thanks very much for joining us here on Civilly Speaking.

Sydney: Thanks for having me, Sean.

Sean: I think this is our first Zoom podcast so thank you for accommodating us and of course our topic today is trying to handle civil litigation in the era of COVID-19 and its effect on jury trials. What have you noticed in your cases as far as the delays and the slowdown of cases?

Sydney: Well, I think the most prominent thing that we’re noticing is the uncertainty of court deadlines going forward through the rest of 2020. It’s apparent by every court’s, you know, sort of emergency orders and, you know, extending this timeframe through currently through April, but at the time of this podcast airing, we may know a little bit more in May of what the horizon looks like and going forward with these cases. But ultimately, what we do know is that civil cases are going to be put on the back burner because we’ve had a delay in the criminal justice system. We’re already the ugly stepchild of the criminal dockets and so the fear is that unfortunately, our cases are going to get pushed further and further down the pipeline and really looking into 2021 most likely.

Sean: I’ve heard from lawyers and other states that they’re not even getting motions ruled on.

Sydney: No, I think that that’s happening, although I haven’t noticed that too much here in Ohio. It seems like it may be in some circumstances that’s happening faster because what else is there to do with the time?

Sean: Yeah, they’re granting motions to continue real fast.

Sydney: Those are coming out lickety split. But yeah, I mean even like here in Franklin County in the 10th District Court of Appeals there’s some interesting emails that I’ve been privy to, sort of, you know, when do the appellee’s have to file their responses? Well, you know, it could be in later in the summer, even though the appellant’s brief was filed in March. So the deadlines are just really, really uncertain. Discovery’s being slowed down and then ultimately, like I said, the actual trial dates are just, you know, probably not even on the horizon right now.

Sean: Have you been able to take any depositions?

Sydney: I have not. We had, oddly enough, for whatever reason I really only had one that was scheduled kind of early into the quarantine period and people weren’t as agile at that point in setting things up remotely although I’m hearing through the lawyer grapevine that there are some concerns about who really should be in the room together. Is it really that feasible to be in different locations with people getting sworn in or having exhibits for the deposition. So, there’s still all sorts of components to the deposition to be fleshed out I think.

Sean: I had one scheduled and it and we agreed to postpone it and the dates coming up again and I started pushing defense counsel, I said, look, we can do it remotely, you can still object, why is it you have to be in the same room? Because that’s what he’s insisting on, that I have to be in the same room as my client. Other than, you know, if you’re gonna try and kick him under the table or, you know, tell him what to say, which I don’t want to accuse him of, I’m not sure why they have to be there in the same room.

Sydney: I think to defend a deposition that’s, you know, exactly on point. I will say, though, that I think the video component of a deposition, being able to see the people participating is a huge factor. I would not feel comfortable taking or really mostly taking a deposition by audio only because I think that you just lose a lot of information about your case when you’re not seeing the person again same rationale behind video depositions, which are more and more in vogue these days.

Sean: Yeah.

Sydney: And along those lines, I’m a little concerned about some of the possibilities in moving forward with court arguments, telephonically, you know, the United States Supreme Court is are starting to take arguments in May by telephone. It very specifically says telephone, not you know anything to do with a visual component to that. I mean, and I can just think of standing when you’re standing at the lectern, giving your statement, your argument, and you’re reading the faces of the judges it just gives you so much feedback into maybe where you want to highlight certain pieces of your argument and where you maybe want you know, don’t seem to be gaining any distance and to do it all by audio, I think we’ll be really, really challenging in the cases may lose a significant function that they previously enjoyed and that I could see happening in even our local appellate court cases where it’s just judges and arguments I really, really want to encourage anyone to strongly suggest that visual component needs to be included.

Sean: Well and you mentioned the United States Supreme Court doing it by phone because they are notoriously skeptical of video and have never allowed video. But I think I saw that the Ohio Supreme Court was doing a video arguments recently.

Sydney: I think I saw that too but I don’t know for sure. I mean, don’t get me wrong, I want to keep Ruth Bader Ginsburg in the most protected, padded virus free room. But I think we could still get her some information by video, and that would be helpful, too.

Sean: Although it is an election year, isn’t it?

Sydney: It is an election year, which would be a whole host of other interesting things post Covid.

Sean: Well, you know, we’re talking about video here and you’ve mentioned the effect of this crisis on trials and I you know, I’ve been thinking a lot about that because, number one, you know, the first concern is assuming well, the first concern, I suppose is getting anybody to show up for jury duty. You know, even after the all clear is given. I mean I think the nationwide statistic is something like a third of people who get a jury summons actually show up before this. I can’t imagine the return rate on jury summons after. Who’s going to want to show up to a courtroom with, you know, a roomful of fifty or one hundred people?

Sydney: Exactly. And, you know, one of the things I’m anticipating is Governor DeWine starting out a period of time where there is a set number that he says that groups can’t gather. I don’t know if that’s going to be ten or fifteen or is it twenty? I think pre-stay home order there was a number cited about ten and maybe fifty, but that’s a lot of gray area in between when you’re talking about gathering for a jury trial. So, I think that’s going to be an important factor in whether or not we’re able to get jurors together. And then the second component is, as we are learning more and more how well we can operate remotely and through audio visual, is there a space where we can have jurors participate by an audio-visual presentation? And is that an advantage to our clients or is it not? There’s a lot to be said for the sanctity of going into the courthouse and having the judge on the bench, in the jury box and the tables, that it’s all part of the American judicial system and is the juror going to receive the information the same way when they’ve got, you know, their kid bopping around in the background? Or maybe they’ve got on Ellen the generous in the afternoon on TV. You know, there’s a lot of things that we can’t control if it’s something where they’re handling these from their homes.

Sean: And they probably wouldn’t look up anything about the case online.

Sydney: You probably wouldn’t do that despite the judge’s strict instructions not to. You wouldn’t look at their Facebook or their TikTok or whatever. So it’s really hard to imagine that scenario, but I think we’re really going to have to be flexible because what’s our alternative? Are our client’s going to be able to wait another year or two for their day in court? I mean just, you know, sort of anecdotally, but the William Husel trial that the doctor here with Mount Carmel, his criminal trial has been reset for I believe it’s April of 2021. Now granted that’s a large trial there, and there are a lot of players in that, but if we’re talking already about criminal dockets in 2021, I’m very fearful of what that means for the civil cases.

Sean: I’ve heard folks raise concerns, this idea of I mean essentially conducting a virtual trial, a virtual jury trial, which bears some cogitation by everybody. But one of the concerns I’ve heard raised is that, you know, that would require the juror or the potential juror to have access to technology, which not everybody does and so on the one hand, does that mean the court is in the business of furnishing laptops to people or on the other hand, does that mean your jury pool is now limited to only those that socio-economic group that is can have that technology now that presents issues that we haven’t dealt with before?

Sydney: It definitely does and we’ve seen that obviously in the educational settings as kids have been trying to do school from home. I think that that’s a really great point. We want our jurors to be as diverse as our population and that would, those restrictions could really affect that. My little vision for the future somehow includes a cubicle like area in the courthouses, whether it be in the jury rooms or in other spaces throughout the courthouse where jurors have much like in an office setting their own space to go. That’s not going to be open to other people. Where they’re still receiving the information electronically, video, audio, visually. So they’re a part, making part in the effort of going to the courthouse. Understanding the importance of their role as a juror. But they’re just in separated areas to receive it. So the court is furnishing that. It’s going to be an expense that we’re going to have to figure out a way to account for that. I don’t know where you get the space for that many jurors. That’s obviously going to be an issue. But we’re going to have to be creative because every indication is that these virus threats are here to stay for a while.

Sean: So in this kind of when we’re in this limbo and we’ve got cases that we are still working on, are there things that you suggest or things we can be doing with our current cases while we’re, while we don’t have pressing court deadlines?

Sydney: Absolutely. I think that, you know, trial lawyers over the years have had to be resilient if that’s not one of the most key elements of being a trial lawyer I’m not sure what is. We’ve had bad law after bad law be enacted that we’ve had to finagle around. So, this is just one of those situations where trial lawyers are going to have to do what they do best. Be creative, be flexible, be willing to try new things. And along with that’s probably going to be working 10 times harder than the other side but all of those things are things that we’re used to doing. And I think that we’re probably in the best position from a legal perspective or legal area to do that. So something’s that I’ve been trying to remind myself, wait this is a unique opportunity of time. We don’t have endless opportunity to look at our cases, evaluate them a little more closely due to the nature of what we have going on in our everyday lives. So I think it’s a really important thing to kind of look at all the cases that you have on your shelves right now. You know, number one, we all know that there aren’t as many cases coming in the door, but this is also an opportunity for you to maximize the value of the cases that you do have to kind of help you through this time period and the dry period that’s probably going to happen. You know, six, twelve, eighteen months from now. I think it’s really important right now to inform your clients of what these potential delays are going to look like for them. There is nothing that a client won’t. Actually, let me put it this way. Clients appreciate when you keep them in the loop. It’s easy sometimes to think that they don’t need to know about every little detail. But even if it’s somewhat of a form letter, I think it’s important to reach out to your clients, let them know that you’re working, that there are going to be delays. But this is also an opportunity, time of opportunity for new ideas to come along in cases and potentially new opportunity to settle with insurance companies. But just to reassure them, number one, that things are moving and that you’re thinking and working. But number two, to let them know what to expect realistically, especially if their cases are in litigation. The other things that I think, you know, that we can take advantage of with this opportunity of time is to look at those cases, especially those in litigation, that you may have experts that might be a little bit more willing to cooperate and communicate with you. You know, we’ve heard a lot of doctors are, and office staff are being furloughed if they’re not in the frontline defense. Although elective procedures are going to start reopening I think just like we’re going to have jurors that are more afraid to come in, we’re gonna have patients that are afraid to go in for those elective procedures for the next several months and so you may have orthopedics or neurologists that are looking for ways to generate income and have the time to potentially write reports, you know, have telephone consultations with you that they wouldn’t otherwise feel like they really needed to participate in. So it would be a good time to identify who those people are and potentially even use those folks in other cases.

Sean: Well, that’s a great point you know how many times are we hounding a treating doc to write a report and they brush us off or aren’t interested in doing it? All the sudden, they may be more inclined to do that.

Sydney: They definitely will be. And not even just specialists you know, one lesson I learned early on is the importance of a family doctor’s opinions in any trial. I’ve really, you know, costs if it’s not cost prohibitive I really try to have the family doctor testify just because I think that it means a lot to the everyday juror and, you know they’re in the same situation. If you don’t have to have an office visit, they don’t want you in the office and so they have time right now. You know, even family doctors’ offices are having reduced hours in the office so I think that’s a great opportunity to reach out to some of those people who may be really the most willing advocates for a patient that they’ve had a long-standing relationship with. I also think that it’s an interesting time to consider, you know, your opposition in litigation files, the court that you’re in. What that court’s willingness may be in getting cases to trial. How novel will the judge be in trying to move the docket along? You know, we stopped filing our cases, including jury demands. I say we, many of us have stopped including jury demands on our complaints and, you know, although the defense, of course, has to be willing to do this as well is this a really good opportunity to try cases just to the judge? It may not. The opposing counsel may not agree, but I think it’s a great time to see if that’s the possibility.

Sean: As a side note, I always thought the best argument against tort reform was how often defense counsel requested a jury. If these juries were really so out of control, why were defense counsel, as a matter of course, always requesting jurors?

Sydney: It’s an excellent point. It’s an excellent point. The other thing I’m thinking and you know, kind of getting back to assessment of the clients, when you go when you’re looking through your files, you’re assessing your cases on the shelves. I think you need to kind of divide them into two categories if you don’t do this already. Those that are willing to get the case to trial and those that just aren’t going to have that endurance and there’s a lot of factors that go into what it takes to get that client to commit to a jury trial. But once you’ve identified those that can stay in it for the long haul, an extra-long haul is this post virus landscape continues.

I think if you really commit to trying these cases. Although it will take longer, the sooner the insurance companies start to feel the pressure of these trials, the less time it’s going to, the pendulum will be swinging against us. You know, we always talk about these hurdles that we face in the legal setting as swung widely one way and now widely back against us the other way and surely we’re going to feel like this time pendulum is working against us. But the more cases that we have ready to go to trial once that system has been set up I think that at the end we’re going to find that the insurance companies aren’t going to be as prepared and willing to take the cases to trial. At least that’s my hope.

Sean: Thanks Sydney this has been fascinating as we’re thinking about this new era of jury trials and handling our cases what final words do you have for us?

Sydney: You know, I just want everyone to stay positive as much as you can. Every day is going to bring its own challenges as we deal with this situation for the long haul. But just to remind everybody that, like I said from the outset, we’re a very resilient group of lawyers and we benefit from our teamwork as a group of lawyers and to stay connected to everyone. Consider new options. Take seminars. Read. Use the additional time to educate yourself on cutting edge trial techniques and, you know, there’s a lot of great lawyers out there that we can continue to learn from. Shorter trials, faster trials, how to keep trial judges’ jurors happy. There’s just a lot of things out there that we can continually do better and I encourage everybody to use this time to tap those resources and come out with this situation ahead of the game.

Sean: Well, Sydney, this has been great. Thanks very much for joining us here on Civilly Speaking today.

Sydney: Thank you, Sean. It’s been a pleasure.

Sean: And thanks to all our listeners out there. If you like our show and want to learn more check out civillyspeaking.com and please leave us a review on iTunes and we’ll see you on the next episode of Civilly Speaking.