A common theme at HarrisMartin’s Midwest Asbestos Conference on Tuesday was how the COVID-19 pandemic has altered asbestos litigation and guidelines for maintaining decorum while navigating working remotely.
“People have been really great in terms of adjusting,” said St. Clair County Chief Judge Andrew Gleeson.
Gleeson was joined by St. Louis Circuit Judge Ellen Sue Levy and Magistrate Judge Mark Beatty at the conference. The group presented last and spoke about navigating remote proceedings in a pandemic and post-pandemic era.
They focused on stressing the importance for attorneys, their clients and witnesses to maintain professionalism.
“Court proceedings themselves need to have a certain amount of formality,” Gleeson said.
“There needs to be an understanding … that I have an expectation that there’s going to be a certain amount of decorum whether you’re in my court in person or whether you’re in my court remotely,” he added.
Gleeson said he understands that appearing remotely is unique. People are home with children, pets and household distractions. However, he said some judges, especially female judges in the family and domestic violence divisions, are not getting “the appropriate amount of attention and respect virtually” in comparison to when litigants appear in person.
Levy said she has witnessed people appearing while cooking dinner, driving, smoking and changing a baby’s diaper. She also said someone unintentionally appeared naked.
Beatty, however, said he has noticed the decorum of attorneys in Zoom discovery conferences has improved. He said that looking at the judge’s face and other parties helps de-escalate situations.
The judges also noted some challenges that come with virtual appearances. They said it is more difficult to assess credibility.
Gleeson explained that they don’t know where the individual is appearing from, who is with them or if they are being coached when they appear remotely.
Levy said lawyers tend to communicate with her and forget to include the other parties.
“Remote does not mean ex parte,” she said.
The judges said virtual proceedings are difficult for court reporters as people tend to talk over each other and they experience audio delays, feedback issues, freezing computers, and technology glitches.
Levy said she doesn’t want these issues to interfere with trials.
“No one likes a do-over more than a judge,” she said. “Trust me, we like to try the case once.”
Beatty added that witnesses appearing remotely should be given exhibits with tabs so they don’t get distracted and shuffle papers if they become nervous.
Levy and Gleeson said that in response to the challenges of remote proceedings, they have taken on more administrative responsibilities. They said they are typing their own orders - sometimes afterhours - and chasing parties down, increasing their workload.
“You need to recognize that you’re going to be responsible and you’re going to need to be able to make that as easy as possible for the judge,” Gleeson said.
He suggested attorneys stay on top of things, email documents and ensure notice is given to all parties.
The judges were asked about vaccination status for jurors. They agreed that asking jurors about vaccination would be inappropriate.
“Everyone has an absolute right to serve as a juror,” Gleeson said. “The fact if they are vaccinated or not vaccinated at this particular point … I don’t think I should exclude them.”
“I have to operate as if everyone is unvaccinated,” he added.
He said he will not allow attorneys to ask jurors about their vaccination status, but may allow them to ask about masks.
Levy said the HIPAA violations by asking about vaccination status “gives me shivers.”
“What do we lawyers hate, a slippery slope,” she said of the vaccination question.
She added that vaccination status is not mandated at this time and not all employees nor judges are vaccinated.
As for masks, the judges agreed that jurors will have to follow the current protocol on COVID-19 mitigations. If that includes masks, then they will be asked to wear masks.
“You will have to be a big boy or big girl and wear your mask during the proceeding,” Gleeson said.
However, he added that if it is clear that a juror doesn’t want to wear a mask and will be difficult to deal with, he will let them go.
Levy said that if a juror is refusing to wear a mask and making other jurors uncomfortable, then they will be let go.
Beatty said he gives jurors protocols when he begins jury selection. He said that if the requirements are provided “right out of the gate, hopefully that will quash any type of resistance during the jury selection process.”
During the conference, attorneys also gave presentations on trying a case during the pandemic, seeing the silver lining of remote work and the pandemic, and tips and strategies for remote depositions.
Attorneys George Kiser of HeplerBroom and Jason Epps of The Gori Law Firm agreed with the judges that remote proceedings make it difficult to judge if a witness is credible. Additionally, depositions done virtually may require patience as they work through technological issues.
“A little planning and a little patience can go a long way to help everything go smoothly,” Epps said.
Attorneys Anna Kohut of Foley & Mansfield and Gregory Joseph Sandifer of The Gori Law Firm recognized the challenges of working remotely but said those challenges come with silver linings.
Kohut said it has been a depressing year for many working moms as extra pressures have fallen on their shoulders, such as filling in the gaps of no childcare and remote learning for school-aged children.
However, working from home also has its benefits, including getting household tasks done throughout the day, flexible hours, and normalizing having families.
“It’s not so secret now,” she said. “Spoiler alert, we all have lives outside of our jobs.”
Sandifer said the pandemic has taught them that attorneys can work from home and still accomplish everything they need to accomplish without reporting to an office.
Plaintiff attorney Casey Cira of Simmons Hanly Conroy discussed what it is like to try a case during a pandemic.
She was involved with an asbestos trial in New Orleans, where they conducted voir dire at the city council chambers so jurors could be spaced out in the room styled like an auditorium. After the jury was selected, the case was moved to the courtroom. Jurors were scattered in the audience seating in the courtroom while the trial team sat in the jury box. She said social distancing was not possible for the trial team, but they did wear masks.
Plexiglass was installed in both the city council chambers and the courtroom where social distancing was more difficult. The plexiglass also allowed witnesses to speak without wearing masks.
Cira did raise concerns about keeping “very fragile” plaintiffs safe despite the added mitigation efforts.
Cira concluded by saying the COVID-19 pandemic should help them prepare for the future. She said scientists predict that social, environmental and mental changes in people could cause another pandemic sooner than people think.