New York Team Pens Article for NYSBA Trial Lawyer Section Digest on Trials During the COVID-19 Pandemic

New York, N.Y. (January 10, 2022) - New York Partner Alecia Walters-Hinds and Associate Kristen Carroll recently published an article, titled "A Trial Attorney's Perspective on Trials During the COVID-19 Pandemic," for the New York State Bar Association's (NYSBA) Trial Lawyers Section Digest. The article, which was prepared prior to the evolution of the Omicron variant of the coronavirus, discusses how the pandemic has affected trial practice, the measures that the New York court system has taken to address the ever-changing nature of the pandemic, and trial lawyers' sentiments concerning trying cases in the current environment.

The authors open the article by acknowledging that although Chief Judge of the Court of Appeals of the State of New York Janet DiFiore "has made efforts to resume and normalize trials . . . inherent challenges remain." They observe that the Seventh Amendment right to a trial by jury has collided with COVID-19-related health concerns, the result of which "is a constantly changing landscape, to which trial attorneys must adapt." The authors further note that most of their colleagues are eager to return to the courtroom on a regular basis. They explain, "One thing is certain – while trial lawyers may still be adjusting to the new normal, they are also ready to get back to regularly trying cases."

The authors go on to describe, on a county-by-county basis, how New York courts have adapted to the various stages of the pandemic. In discussing the policies that these courts have implemented, including those involving vaccinations, masks, and virtual proceedings, the authors point out the specific challenges that certain COVID-related precautions present. For example, on the subject of masking, they describe that when jurors or witnesses wear masks, "it becomes dramatically more difficult to discern non-verbal cues that may be useful in helping to determine credibility. Masks impede the abilities of jurors, counsel and, likely, the court from evaluating the presentation and the demeanor of witnesses, when much of their faces are covered."

After briefly touching on how jurisdictions outside of New York have approached in-person and remote trials during the pandemic, the authors share their observation that most attorneys would prefer to conduct in-person trials as opposed to virtual trials, even if it means wearing masks and adhering to other protocols. Comparing trial practice during the pandemic to a "rollercoaster," and acknowledging that new coronavirus variants may "slow things down yet again," the authors close the article by stating, "What most of us have learned throughout this COVID-19 pandemic is that—when the action really stops—we miss it."

Ms. Walters-Hinds is a vice-chair of Lewis Brisbois' General Liability Practice and the immediate past-president of the New York City Chapter of ABOTA. Specializing in catastrophic, high exposure, and often quite sympathetic and sensitive matters, Ms. Hinds has tried over 100 cases, achieving numerous favorable verdicts on behalf of her clients. During the COVID-19 pandemic, Ms. Hinds was appointed to the Commission to Reimagine the Future of New York’s Courts, and in that role provided recommendations for the resumption of in-person operations amid the pandemic.

Ms. Carroll is a member of Lewis Brisbois' Appellate Practice. She regularly briefs and argues appeals in the First and Second Departments of New York’s Appellate Divisions. She also writes and argues a variety of motions for general liability matters and works with the firm's trial attorneys to prepare trial-related motions and other court submissions.

You may read the full NYSBA Trial Lawyer Section Digest article here. View a PDF version here.