Paul Brown U.S. Courthouse in Sherman. Photo: Google

The plaintiffs attorney who handled Texas' first civil jury trial this week after coronavirus court closures said he didn't question his safety, but wouldn't do it again next week because of recent news about spikes in infections.

Mark Underwood, owner of the Underwood Law Office in McKinney, represented plaintiffs in a slip-and-fall case that went to trial this week. Jury selection was Monday, and the trial was Tuesday and Wednesday, according to the hearing schedule for Judge Amos Mazzant of the U.S. District Court for the Eastern District of Texas in Sherman.

Although Underwood's clients lost the trial—the jury found the defendants weren't negligent for their injuries—he told Texas Lawyer that he was glad to participate to show the country that jury trials can still be held safely.

Texas Lawyer talked to Underwood about the trial. Here are his answers, edited for brevity and clarity.

Texas Lawyer: Why did you agree to move forward with this jury trial during the pandemic?

Mark Underwood, Underwood Law. Courtesy photo

Mark Underwood: With everything going on right now with the protests, it brings home the fact our constitutional rights are important. All of them are equally important.

I think everybody involved, from the judge to the jurors, to the court staff, to all the attorneys involved, really saw an opportunity to take a stand that our constitutional right to a jury trial is that important. I think it's very important for all of us to show a fair jury trial could be had during these uncertain times.

We'll see what happens over the next two weeks. Hopefully, God willing, everyone will be healthy. Everyone was brave. When we spoke to the jurors after, a couple teared up, when talking to them about being brave, and paying attention, staying there, not wanting to get off the jury panel and the courage it took to not try to get out of jury duty during a pandemic.

What were the precautions against infection during the jury selection?

It was different during jury selection than the rest of the trial. Jury selection was the most crowded point.

The precautions were they had the panel in the gallery. They sat them about six feet apart.

They staggered people all the way back. Everybody wore masks.

I asked them is there anyone so worried about the coronavirus that they don't want to be on the jury. Not one person raised their hand.

Did you still feel confident of picking the jury when you couldn't see their faces?

It was okay. I would not change that—because of safety.

How did everyone in court maintain social distancing during the proceeding?

First thing is witnesses on the  witness stand did not use masks. The judge said he did not want the witnesses in the witness stand covering their faces, because he felt it was important for the jurors to be able to judge their testimony and credibility.

Lawyers were restricted to the podium and did not wear masks. The jurors—it was an eight-person jury—only one wore a mask the whole time.

The courthouse and courtroom were built in 1909. It's a very old courtroom, out of the movies, and lots of room to move around. The lawyers were restricted to the podium and the court staff wiped everything down at every break.

Occasionally, the judge had to remind the lawyers we couldn't approach the jury because of the coronavirus.

Was everyone happy with the social distancing measures, so felt they didn't need masks?

I was worried about counsel table. But it's such a large counsel table—I was probably 10 feet from my client. There was plenty of room.

On the first day of trial, they checked everyone's temperature that came in the courthouse. I really appreciated that. They didn't do it the second and third day of trial and I wish they had.

What was your overall opinion about your own safety against infection during the trial?

During the trial, I never had any questions about my safety. After the trial, I started thinking about it and second-guessing myself a little bit. I have a 12-year-old son who I want to be around to raise. But the further I get away from the trial, the more I'm convinced it was a good decision to go to trial.

Would you do it again, and why?

I would not do it again next week, but I would do it again in a month. With all the social distancing that did not occur over the Memorial Day weekend and with all the protests, I see the infection rate spiking in Texas, and I think it's going to continue to spike for a while as a result of the lack of social distancing. I think it will actually be more dangerous in two, three weeks, than what it was right now.

But it can be done. Clearly, it can be done.