During a recent in-person jury trial that used all the common COVID-19 precautions, lawyers on both sides were sitting at their counsel tables and they committed a pandemic faux pas. The fact that attorneys removed their face masks rubbed some jurors the wrong way—and counsel heard about it later. "We were notified by court staff that one jury member, or some jury members, had made the observation," recalled Houston plaintiffs attorney Mo Aziz, who won a $4 million jury verdict for his client after an in-person jury trial in federal court in Waco. "Rule No. 1 would be to follow the court's rules on precautions, because you don't want to be that one person, when everybody else has to sit and wear masks—the jury has to sit and wear masks—and you are the one flaunting the rules." Texas district courts and county courts-at-law have been able to hold in-person jury trials since October, because the Texas Supreme Court lifted a ban to allow judges to move cases forward as long as they had a long list of precautions in place. Although technically allowed, jury trials are still rare in the Lone Star State. Out of the state's major metro areas, only Harris County, the home of Houston, is conducting in-person jury trials. The counties that contain Austin, San Antonio and Dallas still have not brought jurors back to courtrooms in-person, although they are using or planning to use Zoom for virtual jury trials. We asked the lawyers and judges who have already done in-person jury trials during the pandemic to share their tips and advice for other attorneys who will come behind them. Aside from the need to follow pandemic precautions exactly, they said counsel need to use their time wisely, have a firm grasp of courtroom technology, and be frank with jurors about feelings on conducting a trial during the pandemic. Aziz, partner in Abraham, Watkins, Nichols, Sorrels, Agosto, Aziz & Stogner in Houston, noted that the pandemic has increased the need for trial attorneys to use their time wisely during in-person jury proceedings. "If someone is uncomfortable, to be perceived that you are dragging things out or causing unnecessary delays—that could be a problem," he explained. Judge Beau Miller of Harris County's 190th District Court said that COVID-19 has increased the need for lawyers to consult with judges before a jury trial. Counsel should get fully versed in the infection-control protocols that they judge is using in his courtroom, explained Miller, who has conducted five jury trials during the pandemic. "Mentally and physically they have to prepare for a trial like they would before, but be even more attentive to the physical demands of wearing a mask and speaking through a face shield," Miller said. "I notice my jaw gets tired." He urged attorneys to ask judges questions about how the courtroom will be set up for the trial. To use social distancing in a courtroom, people have to sit in unusual places—such as putting the jury in the courtroom gallery instead of the jury box. It was always important for trial attorneys to have a good grasp of courtroom technology systems before the pandemic, and now the requirement is imperative, Miller said. Lawyers need to be competent in bringing in witnesses on Zoom—and making sure they're online on standby—so the court isn't left waiting for the connection when it's time. Because jurors are socially distanced sitting in the gallery, lawyers need to know how to show exhibits on two televisions facing the jurors, Miller said. "How you interact with the technology is more sophisticated and complicated—but it can be more impactful, too," he said. |

'Abomination'

Without technology, criminal-defense attorney Brent Mayr never would have pulled off his trial at all. He participated in a hybrid jury trial where he and his co-counsel appeared by Zoom, and everyone else was present in the courtroom, Harris County Criminal Court-at-Law No. 9. He won an acquittal for his client's misdemeanor DWI charge. Despite the good outcome, Mayr said he does not recommend going to a jury trial during the pandemic. "It's an abomination of the jury trial system," said Mayr, managing shareholder in Mayr Law in Houston. He said he felt safe during jury selection, which was held at the NRG Arena in Houston, a large conference center space where everyone was socially distanced. He said everyone was wearing a microphone and headphones, which allowed the audio to come through clearly. But it was impossible to see jurors' faces. "They have masks covering everything from their nose and below. They also put the plastic face shields on them," Mayr said. "Any time the juror moves around it's reflecting the big stadium lights."

Courts in Harris County are conducting in-person jury trials. The courts' video, "Justice Requires Jurors," shows what jury selection and trials look like with COVID-19 precautions. (Photo: Harris County District Courts)

Because he has close contact with immunocompromised people and has had close friends who died of COVID-19, he was not willing to appear at an in-person trial at the Harris County Criminal Justice Center, Mayr said. "We were open and honest about our feelings about COVID with the jury," explained Mayr. He talked to them about their own stance on the virus, asking if they were hyper-vigilant and wouldn't leave the house, or if they leaned toward believing the coronavirus response was a hoax and resisted wearing masks. Some jurors honestly said they would think poorly of Mayr and his team for appearing on Zoom, and the judge excused them from jury service for cause, he said. Mayr said, "Other jurors said, 'We respect your feelings, and we will give you a commitment to not treat you differently.' The jurors we selected gave us that commitment."