My Experience Conducting a Civil Jury Trial During the COVID-19 Pandemic: Three Separate and Unique Accounts

WDC Journal Edition: Spring 2021
By: Chelsea J. Wilfong, Corneille Law Group, LLC, and Christina Davis-Sommers, Corneille Law Group, LLC; Andrew J. Versnik, American Family Mutual Insurance Company, S.I.; Patrick G. Heaney, Thrasher, Pelish & Heaney, Ltd.

Editor’s Note: Three of our members recently tried jury cases to verdict in Waukesha, St. Croix, and Rusk Counties during the COVID-19 pandemic. A summary of each case and description of their individual experiences are detailed below.

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Nuahlay McEachran, et al. v. Bremer Financial Corporation, et al.

St. Croix County Case No. 19-CV-209

October 20-22, 2020

By: Chelsea J. Wilfong, Corneille Law Group, LLC, and Christina Davis-Sommers, Corneille Law Group, LLC

On October 20, 2020, we arrived at the St. Croix County courthouse to commence a civil jury trial for a slip-and-fall case in which we represented a defendant bank where one of the plaintiffs alleged she fell due to dangerous ice conditions. We carried, along with the standard trial equipment, masks and a list of novel courtroom procedures provided to us by the Court. 2020 was an unprecedented year for most of the global population, with COVID-19 bringing most facets of life to a standstill, and Wisconsin courts were not impervious to the impacts of COVID. In writing this article, we hope to share our experience of trying a case to a jury in the midst of the pandemic and to provide insight into what trials might look like moving forward, as courts attempt to balance their inevitably busy calendars and the need to implement COVID safety precautions.

On March 22, 2020, the Wisconsin Supreme Court issued orders postponing jury trials, temporarily suspending in-person proceedings statewide (with limited exceptions) and requiring the rescheduling of countless trials. Courts were required to utilize technology platforms in lieu of in-person appearances. On May 22, 2020, the Supreme Court extended the March order, including the suspension of all civil and criminal jury trials, until the chief judge of the judicial district approved an “operational plan” submitted by the circuit court. The St. Croix County Circuit Court was proactive, submitting an operational plan in June of 2020, which was approved the same month, allowing jury trials to resume on July 1, 2020.

Although the St. Croix County Circuit Court had briefed the parties on a number of the measures it had implemented as part of its operational plan at the telephonic pre-trial conference, it was unclear exactly what a trial would look like under the COVID protocols. While some changes were to be expected, others were more surprising. The first thing we noticed while setting up the courtroom was that the room was quite cold. This was apparently due to a revamped air ventilation system in the courthouse, that allowed for completely new air to be circulated every 30 minutes.

The courtroom was arranged to maintain appropriate social distancing between all individuals as much as practicable. The jury box had been reconfigured and was able to accommodate a 12-person jury with 6 feet of space between all jurors. Although we were asked to conduct as much of our trial activities at counsel table as possible, the need to lay foundation for exhibits, hold sidebars with the judge, and perform other trial activities resulted in the attorneys leaving counsel table frequently.

Although there has been some curiosity as to the physical layout of the courtroom, the most frequent questions we are asked about the trial have to do with the impact the mask-wearing requirements had on jury selection, in-court examinations, and the ability to gauge jurors’ reactions to testimony and opening and closing statements. Jurors, courthouse personnel, and counsel were required to wear a mask at all times in the courtroom, and jurors were also required to wear masks during breaks and deliberations. This was true even while counsel was conducting opening and closing arguments and witness examinations. Given the importance of the jury being able to judge the credibility of all witnesses, including the parties, and for the attorneys to adapt trial strategy as necessary based on juror reactions to the testimony being elicited, we had concerns that the mask-wearing requirement might impede our ability to present our case most effectively. The most challenging aspect of the mask requirement for jurors was the impediment it created to our ability to read reactions of the jurors to voir dire questions, witness testimony, opening statement and closing arguments.

During voir dire, it was difficult to assess a juror’s demeanor as he or she answered a question, and we made our jury strikes without the benefit of being able to see facial expressions. Until you are deprived of the ability to watch the reactions of jurors, you do not realize how important that can be as a trial progresses. Similarly, during witness examinations, non-examining counsel had to keep a close eye on the jurors. We had to assess how each juror reacted to testimony by watching their eyes and to rely heavily on body language, taking special note when jurors nodded, shook their heads, or crossed their arms.

Despite the challenges discussed above, voir dire proceeded much the same as it did before COVID with one exception: Judge Scott Needham gave the jury an in-depth explanation of the changes made to the courthouse and measures that would be implemented during trial to ensure that everyone involved in the trial, including the jurors, were as safe as possible.

Prior to trial, a comprehensive COVID-related questionnaire had been sent to all potential jurors to ascertain if certain members of the potential jury pool should be excused from service because of COVID-related issues. After the Judge walked through the protective measures for the benefit of the potential jurors, he asked all members of the jury pool if they were uncomfortable with the accommodations and wanted to be excused due to COVID-related concerns. Not a single member of the pool asked to be excused which was no doubt due to the comprehensive COVID-related questionnaire that had already been sent out. There is some question as to whether this questionnaire impacted the jury pool and whether a jury without an expressed concern over COVID is a representative sample of the community. This is particularly notable given the polarization of ideologies and opinions as it relates to COVID and COVID precautions. What we did find surprising was that all age ranges were represented in our jury.

During the remainder of his explanation regarding COVID safety measures, Judge Needham explained the updated ventilation system and pointed out the plexiglass around the witness stand. He stated, consistent with the Wisconsin Supreme Court Order, that witnesses would not wear masks during their testimony so that the jury could gauge credibility, but that otherwise, everyone would wear a mask at all times. He explained to the jury that judging credibility was an important part of their fact-finding task and that only through seeing a witness’s facial expressions was this possible.

That jurors were able to observe the full facial expressions of the trial witnesses was a benefit to the presentation of our case, which included emotional witness testimony. Had the faces of the witnesses been obstructed by masks, we felt that some of the impact of the testimony would have been lost on the jurors and, as a result, we may not have observed some of the more obvious juror reactions indicative of the jury’s sentiment. For example, one plaintiff cried during her testimony, and another became visibly angry. We were able to observe a number of the jurors tilting their faces to the ceiling and others crossing their arms throughout these portions of the witnesses’ testimony, indicating to us that reiterating the testimony during closing would be beneficial to our case.

During deliberations, the jury was escorted to a large room in the jail. This was so that the jurors could deliberate together in a single room while maintaining appropriate social distancing, but it also allowed the courtroom to be utilized for other cases during deliberation, as it was the only operational courtroom in the building. During breaks in trial, the jurors were not removed to the jail but, rather, were split into four or five groups, with each group placed in a separate room adjacent to the courtroom. From the outside looking in, the jury appeared to be functioning as usual during deliberation. The jury deliberated for about three hours and sent questions to Judge Needham as it would under normal circumstances.

Ultimately, no attorney can predict the outcome of a jury trial with complete certainty. Verdicts are dependent on the jury’s ability to fully observe as well as listen to witnesses and counsel. How a jury is reacting during the course of trial provides information useful for the trial lawyer in determining points of emphasis, and whether there is a need to adjust strategies during trial. Even though some of the more subtle juror reactions were lost due to the masks, we were still able to read the jurors’ body language and use it to build an effective and impactful closing argument, ultimately enabling us to secure a favorable verdict. Trying cases under COVID restrictions presents some unique challenges, but effectively trying cases under these conditions is certainly achievable, especially if judges exercise their discretion to permit witnesses to testify without wearing masks and counsel takes special care to observe the jury.

Author Biographies:

Chelsea J. Wilfong is an associate at Corneille Law Group, LLC in Green Bay. She obtained her bachelor’s degree in history from the University of Wisconsin-Eau Claire. She earned her J.D. from the University of Wisconsin Law School, where she was a finalist in the Best Brief Competition and was ranked a top 20 oralist in the Midwest in the Philip C. Jessup International Law Moot Court Competition. Chelsea represents clients in civil litigation matters, including complex litigation, at both the trial and appellate levels. She defends health care providers in medical malpractice matters, insurance companies in personal injury suits, and municipalities in a variety of tort matters. Chelsea is admitted to practice in all Wisconsin state courts as well as the U.S. District Court for the Eastern District of Wisconsin. She is a member of the Wisconsin State Bar, American Bar Association, 7th Circuit Bar Association, and Wisconsin Defense Counsel.

Christina Davis-Sommers is an associate at Corneille Law Group, LLC in Green bay. She graduated with a B.A. in History, cum laude, from Rice University in 2005. She then earned her J.D., with high honors, from The George Washington University Law School in May 2009. During law school she won and received Best Brief Honors in the school's Van Vleck Constitutional Law Moot Court Competition, presided over by the late Justice Antonin Scalia. Christina also received awards for Excellence in Constitutional Law and for Best Overall Competitor in the Grenadier International Law Moot Court Competition. Christina is admitted to practice in all Wisconsin state courts. She is a member of the Wisconsin State Bar and the Outagamie County Bar Association.

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Philip M. McKenney, et al. v. John Howley, et al.

Waukesha County Case No. 19-CV-1364

January 5-6, 2021

By: Andrew J. Versnik, American Family Mutual Insurance Company, S.I.

When McKenney v. Howley was assigned to me on August 19, 2019 I had a strong feeling it would end up being tried. The facts of the case were unique, the insured was cooperative and invested, we had a strong liability defense, and (perhaps most importantly) there was plenty of insurance coverage available. Little did I know how different the world would be when the case did go to trial in the beginning of January 2021.

By way of background, the McKenney case arose out of an incident in which the plaintiff fell down the American Family insured’s basement steps. The plaintiff and American Family’s insured had been friends for over 40 years. They grew up in the same Illinois town and went to high school together. They maintained their friendship throughout the years after high school and into adulthood. A couple of days prior to the incident in question, American Family’s insured called the plaintiff and asked him if he would be willing to help move a water heater into the insured’s basement. The plaintiff agreed to help and drove from his home in Illinois to the insured’s home on the day of the incident. Once the plaintiff arrived, he and the insured went to a local Menards’ where the insured purchased the new water heater. After making the purchase, they drove back to the insured’s home.

There are some discrepancies about what happened once the plaintiff and the insured returned to the insured’s home. The plaintiff claimed he and the insured unloaded the water heater from the insured’s vehicle and carried it inside the insured’s home. The insured testified that he unloaded the water heater from his vehicle by himself with the use of a dolly and transported it inside his home without the plaintiff’s assistance. Regardless, the water heater was moved into the insured’s home and placed at the threshold of the insured’s basement steps.

According to the plaintiff, the insured came up with the plan for how they were going to move the water heater into the basement. The plaintiff said that he went to the bottom of the insured’s basement steps and the insured then started to “walk” the water heater down the steps by himself. The plaintiff claimed that the insured then asked the plaintiff to come part way up the steps. As the plaintiff was walking up the steps, he claimed the insured “let go” of the water heater. The water heater struck the plaintiff and knocked him down the basement steps to the concrete floor. The plaintiff alleged that the insured letting go of the water heater constituted negligence.

According to the insured, he and the plaintiff jointly came up with the plan for how to move the water heater into the insured’s basement. The insured said that he agreed to take the top position and the plaintiff would take the bottom position. The plaintiff and insured would then move the water heater down the stairs step-by-step. The insured claimed that he had his hands on the water heater the entire time. He insisted that he never let go of the water heater and held onto it the entire time. The insured said the bottom of the box “slumped” forward, knocking the plaintiff down the steps to the concrete floor below.

As a result of the incident, plaintiff was claiming permanent injuries to his lower back. He sustained transverse process fractures at L1-4. Prior to trial, American Family offered $15,000. Plaintiff’s only demand was $300,000. Ultimately, the parties stipulated to damages in the amount of $200,000. The only issue remaining for trial was liability.

The McKenney case began like most other cases I defend. I filed a notice of appearance and an answer. I propounded written discovery on the plaintiff’s attorney. I collected the plaintiff’s medical records. American Family’s insured was deposed on December 17, 2019. An inspection of American Family’s insured’s home was conducted on February 21, 2020. Finally, the plaintiff was deposed on March 12, 2020. Coincidentally, that was the last in-person deposition I have conducted. Mediation was conducted virtually. The case was assigned to Judge Bohren in Waukesha County. After mediation failed, a final pretrial conference was held via Zoom.

Judge Bohren held the final pretrial conference on August 24, 2020. Given the circumstances and my experience with how other counties in the area were scheduling, I assumed the McKenney trial would not take place until mid-to-late 2021 at the earliest. Frankly, I was shocked when Judge Bohren offered a January 5-6, 2021 trial date. Perhaps due to my shock, I foolishly agreed to the date not realizing the trial would take place after the New Year’s weekend.

As the January 2021 trial date approached, I assumed this trial would be different than any of my prior jury trials. COVID-19 was still prevalent in the community, and most counties in the greater Milwaukee area were not holding jury trials. On top of that, I had not been to my office since March 2020. American Family was being very cautious with its employees’ health and had transitioned most of us to remote work.

As I started to prepare for trial, I realized I would need access to my office. The court would still require paper exhibits at trial and I would need to print those exhibits (I did not have a printer at home). Further, I discovered the original transcript of the plaintiff’s deposition was located in our American Family building. This would obviously have to be retrieved before trial. Finally, I concluded that the best way to prepare for trial would be outside of my makeshift home office. While I had grown used to working from home, the amount of physical space available to me is limited. The setup works most days, but trial preparation would be different.

In order to gain access to my office, I had to submit an online request to American Family. As I mentioned, American Family was being very cautious with its employees’ health and had restricted access to our office building for all but 1-2 designated persons. Additionally, before trial, I had to provide an update to my manager and let him know why I needed to appear in person and what precautions would be taken by the court. This summary was then provided to my manager’s superiors. Had they taken issue with the insured or me appearing in person I would have had to file a motion to adjourn the trial.

To find out what COVID-19 precautions would be taken, as well as to test the technology in the courtroom, I went into the courtroom where the trial would be held a couple days before the trial was set to begin. I learned that Waukesha County had one courtroom setup for its civil jury trials. When I walked into the courtroom it was easy to see the precautions that were being taken. The first thing I noticed was plexiglass seemingly everywhere. There was plexiglass on the bench, on the witness stand, at counsel’s table, in the jury box, and in the gallery. Additionally, as was expected, everyone in the courthouse was wearing a mask. I learned this would be true for the jurors and everyone else in the courtroom during the trial. Luckily, the powers that be at American Family gave their blessings to proceed with the jury trial.

Though the plexiglass may have been unusual, it did not affect the trial. The attorneys were still able to physically hand exhibits to the clerk, the jurors still sat in the jury box, and the attorneys and their clients still sat at counsel’s table. However, I will note, there was noticeably less room at counsel’s table given the plexiglass separating me from my client.

On the morning of trial, before the jury pool was brought in, the attorneys and the judge had a brief conversation about COVID-19 and whether or not it would be addressed. To the best of my recollection, the conversation went as follows:

Plaintiff’s Attorney: Judge, before we start, do you plan on addressing COVID-19 at all with the jurors?

Judge: No, I wasn’t going to.

Plaintiff’s Attorney: Okay. Then neither will I.

Attorney Versnik: Me neither.

As bizarre as it may seem given the presence of COVID-19 in our everyday lives, that was the extent of it being mentioned at any point during trial.

Following this brief conversation, the jury panel was brought into the courtroom. Fourteen jurors were seated in the jury box and the rest were spread out, six feet apart from each other, in the gallery. All of the potential jurors were wearing masks of course. Voir dire began with the judge asking the typical questions. COVID-19 was never mentioned. The plaintiff’s attorney was then given his opportunity to ask questions. COVID-19 was never mentioned. Finally, I had my chance to ask questions. COVID-19 was never mentioned.

The biggest impact COVID-19 had on the jury trial was the inability to read the jurors’ facial expressions during voir dire, opening, closing, witness testimony, etc. Sure there were occasions where witnesses were asked to speak up due to their masks contorting their speech, or attorneys adjusted their masks during opening and closing. However, the utter lack of facial expressions of the jurors made it difficult to determine how the trial was going. As attorneys we are used to reading and analyzing nonverbal cues from the jury. The presence of masks completely eliminated this from trial. There were some head nods and head shakes during the trial, but that was it.

The highest compliment I can give to the Waukesha County courts and the judge in this case is how normal the jury trial felt once it began. Frankly, it felt good to be back in a courtroom. The fact that COVID-19 did not dominate the trial is a testament to Judge Bohren and his handling of this case. I assumed trying a case during COVID-19 would be different. In fact, it really wasn’t. A jury was picked, opening statements were given, witnesses were questioned, exhibits were introduced, and closing arguments were given. After all that, the jury deliberated for an hour and a half, and a verdict was reached. I’m proud to say the jury found no negligence on behalf of American Family’s insured.

I could see how COVID-19 precautions could affect longer trials. There would likely be a need for a number of alternates. However, this trial was like most other trials I’ve had and that was a good thing.

Author Biography:

Andrew J. Versnik is a Trial Senior Staff Attorney for American Family Mutual Insurance Company, S.I. in Waukesha. He is a 2008 graduate of the University of Wisconsin-Oshkosh where he majored in Political Science and minored in History. In 2011, he received his J.D. from the University of Wisconsin Law School. While attending law school, Andrew served as a Judicial Intern for the Honorable Peter Anderson of the Dane County Circuit Court. He also served as an intern at the office of the Milwaukee County District Attorney. Andrew is currently a member of the Wisconsin State Bar Association and Wisconsin Defense Counsel. He is admitted to practice in Wisconsin and before the United States District Court for the Western District of Wisconsin.

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Roger L. Shimko v. Jeffrey A. Potter, et al.

Rusk County Case No. 19-CV-44

January 25-26, 2021

By: Patrick G. Heaney, Thrasher, Pelish & Heaney, Ltd.

This case involved a T-bone collision. The insured, Jeff Potter, was exiting his driveway in his pickup truck. He intended to cross Highway 40 to a different part of his farm. He did not see his neighbor, Plaintiff Roger Shimko, approaching from the north. Following the collision, Shimko was airlifted to Eau Claire. He received several orthopedic injuries, including a broken leg, broken ribs, broken elbow, broken ankle, as well as alleged aggravation of pre-existing pain in his hips, knees, and left shoulder. He also alleged a traumatic brain injury. He was in a nursing home for approximately four months following the accident.

Prior to trial, the parties stipulated to liability. The parties also stipulated to $190,623.30 in past medical expenses. The only issues for trial were future medical expenses and past and future pain, suffering, and disability.

Judge Steven Gibbs from Chippewa County was assigned to the case because plaintiff substituted the usual Rusk County judge early in the litigation. The case was initially set to go to trial in July of 2020. I had to file a motion for continuance—not because of Covid—but because our expert neurologist was not available to testify.

When Covid started ramping up, opposing counsel suggested a 6-person jury. After discussions with my client, we would not agree. Opposing counsel then indicated he was fine going forward with a 12-person jury. The court never suggested a 6-person jury or a court trial and was always willing to conduct a full 12-person trial as long as the parties felt comfortable. A few weeks before the January 2021 trial, we received an e-mail from the court simply stating it expected the trial to go forward.

We did not have much discussion about logistics with the court. However, when I got into chambers the first day of trial it was apparent Rusk County was prepared to go forward safely. But the first question Judge Gibbs asked on voir dire was “Is there anyone that thinks we are crazy doing this?” No juror raised a hand. (Interestingly, Judge Gibbs said he asked the same question in an Eau Claire County trial and several jurors raised their hands).

The most striking thing I will remember about this trial is I felt like we were trying the case in a hockey arena. There was Plexiglas everywhere—Plexiglas on the bench, Plexiglas at counsel table, and Plexiglas in the jury box. Everyone was required to wear a mask, of course. I did notice some of the jurors slipping their mask below their noses. But they were not reprimanded. The judge also wore a face shield. I did not hear any grumbling about the mask requirement. Everybody tried to keep distance, but we did sometimes get pretty close to witnesses with exhibits and deposition transcripts. The jurors were spread out, and some of the jurors were seated outside the jury box once the jury was impaneled. One thing I found confusing was the seating chart for the jury pool. It was not configured the normal way because jurors were seated everywhere.

The court reporter did mention she was having problems hearing a couple times because of masks. I tried to speak as loudly as possible and I think witnesses and opposing counsel did as well. Another major change is I did not drink nearly as much water because I would have had to remove my mask. Speaking of water, there was no water pitcher. Only water bottles. And they were outnumbered by all the hand sanitizer bottles.

All in all, I thought it was a fairly normal trial considering the circumstances, and I was happy we were able to go forward. My personal opinion is there is no reason jury trials can’t go forward in person as long as they are conducted safely. Of course, I could not shake opposing counsel’s hand after closing argument. We had to do the elbow bump. But such is the life of a trial lawyer in 2021.

Author Biography:

Patrick G. Heaney is a shareholder at Thrasher, Pelish & Heaney, Ltd. in Rice Lake. His undergraduate education was at the University of Wisconsin-Eau Claire where he graduated summa cum laude with a Bachelor of Business Administration degree. He obtained his Juris Doctorate degree from the University of St. Thomas School of Law where he was Article Editor for the University of St. Thomas Law Journal. Pat has tried many successful cases—both jury trials and bench trials—in personal injury, breach of contract, and real estate disputes. Additionally, he has handled several successful appeals and argued cases in front of the Wisconsin Supreme Court. He is a member of the State Bar of Wisconsin and the Barron County Bar and admitted to practice in all Wisconsin State Courts and Federal District Court for the Western District of Wisconsin. When not in the office or in court, Pat volunteers as a Commissioner for the Sand Lake Management District. He also enjoys hunting, fishing, boating, skiing, and traveling with his family.