So. Cal. Realty Law attorneys Shanna Welsh-Levin and Zackary Mikucki presented one of our unlawful detainer (eviction) cases to a live jury on April 14th – 16th, 2021. This marks an important milestone for San Diego County. To maintain the integrity of a jury trial, the presentation must take place in person. Our trial was only the fourth civil jury trial in San Diego County since COVID began over a year ago.
To start, we appeared for the Trial Call hearing in Judge Enright’s courtroom in the Union Street building in downtown San Diego. Things looked a little different than the last time we set foot in a courtroom, which was in February 2020. The line of view from counsel’s table to the judge’s bench was obscured by layers of plexiglass surrounding each designated seat. There were two spaces at each counsel table. No extra seats at the table for co-counsel, and no water cups or pitchers. We were advised to bring our own water. Masks were required at all times, even when seated at the counsel tables. The witness stand, court reporting area, clerk’s desk, and judge’s bench are enclosed by plexiglass on two or three sides. The glare made it difficult to see the judge and opposing counsel. I found myself leaning to the side and moving my chair just to see masked faces. The use of microphones was necessary as the plexiglass has a way of dampening sound.
Our judge made sure everyone was safe. One COVID scare could undo the progress we were making for many cases still awaiting juries. Speaking to co-counsel or our client in the courtroom was not possible without violating rules of social distancing, which we were cautioned to observe, especially in the presence of the jury. Our team had to carefully find opportunities to confer. Side conversations with opposing counsel were more difficult as we maintained our distance. The judge was careful to remind us to stand back and advised that we would not do any sidebar conversations at the bench. One witness attempted to lower his mask while testifying and was cautioned by our judge to keep his mask in place. His mask would not stay up throughout his testimony and was a distraction.
We occupied three different courtrooms during the trial. The initial trial call was in Judge Enright’s department. During voir dire (a.k.a. jury selection), we moved to a larger courtroom in the Union Street building. The jury box was intact with eighteen individual booths surrounding the chairs for each juror. Forty jurors entered the room, one at a time. The first eighteen entered the jury box and sat side-by-side with plexiglass in between. The rest were socially distanced throughout the large courtroom audience area.
A second set of counsel tables was added to the courtroom facing the audience area and away from the judge’s bench so that voir dire could be done facing the potential jurors. The judge advised that we did not have to swivel around to face him when he was speaking. The bailiff held a microphone which was carefully wiped with a disinfecting towel and handed to each juror. When counsel spoke, it was necessary to use the microphone at counsel’s table, making it difficult to stand and speak.
After voir dire, we moved to a third, larger courtroom, Department C-63 in the San Diego Hall of Justice. In the larger courtroom it was easier to see and hear because the plexiglass was more spread out. The audio-visual equipment and laptop cords were barely able to slide underneath the plexiglass around the counsel tables.
The trickiest part of post-COVID jury trials is that everyone wears a mask. Our ability to read faces of jurors and witnesses is reduced. Do we realize how often we read faces, or how important facial expressions are when we communicate with others? Trial attorneys hone this skill for voir dire. With masks, it’s a different ballgame. Meeting jurors’ eyes without being able to smile or read their expression is frustrating. Nodding and bowing becomes the currency of expression, and trying to “smile with our eyes”. Our ability to determine how a juror feels in response to a voir dire question is crippled because half of the facial expression is behind a mask.
Our attorneys are happy to share the details of this experience if you are interested to know more. It was an honor to have this opportunity, and the best news is, we won! We prevailed in evicting a tenant who was taking advantage of an elderly man with dementia by squatting in his home after the elderly owner was transferred to a memory care facility. His family was relieved to recover their family home, and we were honored to have the opportunity to assist them.
Now the challenge is getting the sheriff to enforce the lockout. More on that in our next blog. . . .
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