CORONAVIRUS

Jury trials and jury waivers and COVID-19

Iowa had three highly publicized jury verdicts against employers in the past few years — $1.4 million for a gender discrimination claim against the University of Iowa, $2.2 million for a sexual harassment claim against the Iowa Republican Senate caucus, and $4.5 million for an age discrimination claim against Grinnell Regional Medical Center.

Most of the damages awarded by these juries were for emotional distress.

I often have encouraged readers to institute robust anti-harassment and non-discrimination policies and to be consistent in enforcing them.

However, even when they adhere to best practices, employers never can completely immunize themselves from liability, as misconduct can be perpetrated by rogue actors within an organization.

How else can employers be protected against headline-making jury verdicts? In a previous column, I recommended a simple solution — jury waivers.

Jury waivers offer an important protection against emotional distress verdicts. Better yet, employers can implement them on their own.

If an employer requires its employees to sign a jury waiver, any dispute covered by the waiver will be resolved in court by a judge and not a jury. Several Iowa federal court judges have approved these waivers.

COVID-19 has forced courts around the country temporarily to suspend jury trials as a social distancing measure.

But even when courts resume operations, civil trials may not be the same for some time.

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As long as I can remember as a lawyer, it was common practice to gather dozens — and in high profile cases, hundreds — of potential jurors in one room for jury orientation before calling a panel of around 40 jurors at a time into smaller courtrooms.

Jurors would sit directly next to each other for the entire trial, convene together at breaks and lunch, and be sequestered together during deliberations, generally in small rooms.

As courts slowly reopen following COVID-19, significant modifications to how jurors are empaneled may be required.

Courts also are likely to request attorneys to waive the right to a jury trial and proceed to a bench trial.

In one recent case from New York, the federal court judge told the parties in a patent litigation that the court fully intended to proceed with the bench trial for the summer 2020, stating that bench trials are the “one type of proceeding that can go forward even during a pandemic.”

By contrast, in a California case, the attorneys for both parties spoke with the federal judge about a June 2020 jury trial date and whether it should be pushed to September 2020.

The lawyers also were concerned as to whether the testifying witnesses would wear masks.

The judge stated that when trials do start up again, “everything is going to be different.”

There are trade-offs in waiving a jury trial.

For example, a bench trial is effectively a jury of one person. The parties have to live with the judge assigned to them.

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In addition, a judge in a bench trial may be more active in asking questions of witnesses on the stand, both because the judge is the finder of fact, and because there is no jury to be unduly influenced by a judge’s questions.

Furthermore, in a jury trial, the judge may have concerns about permitting evidence that may be inflammatory or unfairly prejudicial.

In a bench trial, however, a reviewing court will generally assume that the district court was not influenced by evidence improperly brought before it unless there is evidence to the contrary.

On the plus side, bench trials tend to result in better guidance to the parties about their case and the logic behind the decision.

For example, in an action tried without a jury the court must find the facts specially and state its conclusions of law separately.

By contrast, in jury trials both sides are frequently left wondering why the jury ruled the way it did, and the attorneys — only if the court permits them — often are left to contacting each juror to find out the logic for their ruling.

In addition, bench trials are generally shorter and less costly than a jury trial.

The absence of drafting jury instructions and selecting a jury, including time and money spent on jury consultants and increased attorney fees, can lead to significant savings. Judges in bench trials may also be more willing to take evidence in writing, rely upon deposition testimony, or use remote technology.

Finally, certain types of cases may be better suited for bench trials.

In cases dealing with sophisticated business issues, scientific issues or complex facts, judges are arguably better able to navigate the subject matter.

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In emotionally charged cases, a judge’s training and temperament is likely to result in a logical ruling and limits the opportunity for runaway jury verdicts.

A personal injury or harassment plaintiff, alternatively, might benefit from trying the case before a sympathetic jury.

It is not realistic to assume that courts will spring back to normal processes immediately as full stay-at-home orders are lifted.

Courts initially will need to adopt new rules for processing jurors through the system, to eliminate or minimize the number of jurors who must be physically present in the courtroom, or to accommodate ongoing social distancing and other protocols from the Centers for Disease Control and Prevention.

This likely will result in continued delays in civil jury trials.

Accordingly, foregoing a jury where possible will help employers save money and time in employment cases, and may allow for their cases to be resolved more quickly in this time when courts are still working to adapt traditional jury trials to social distancing norms.

Wilford H. Stone is a lawyer with Lynch Dallas in Cedar Rapids.

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Support our coverage

Our most important Coronavirus coverage is free to the public.

If you believe local news is essential, especially during this crisis, please donate. Your contribution will support news resources to cover the impact of the pandemic on our local communities.

All donations are tax-deductible.