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Brouse McDowell attorneys score a win in their 1st virtual jury trial
SHERRY KARABIN
Legal News Reporter
Published: May 21, 2021
When Brouse McDowell shareholders Amanda Leffler, P. Wesley Lambert and Matt Vansuch learned in late January that they would be participating in the first virtual jury trial in the Northern District of Ohio, they say they weren’t sure what to expect.
But with the learning curve now behind them and the insurance recovery trial yielding a positive outcome for their client, they’re giving the experience high marks.
“The entire process definitely exceeded my expectations,” said Lambert, chair of the Litigation Practice Group at Brouse McDowell. “It was very well organized and while you lose some of the aspects of a jury trial that come from being in the courtroom, I think the most important components were replicated.
“We did have some minor technical problems, but even with those issues the trial may have gone quicker than it otherwise would have,” said Lambert. “It was certainly more streamlined because eliminating location-related obstacles like drive time meant there were fewer delays from start to finish.”
Brouse McDowell attorneys represented Masury, Ohio-based PI&I Motor Express Inc., which was seeking reimbursement from RLI Insurance Company on a large settlement paid out to an independent contractor who was severely injured on the job.
The incident took place in June 2014 in Allegheny County, Pennsylvania when Ryan Marshall Sr. was transporting pipe at a Dura-Bond Industries facility. During the loading process, a pipe fell and crushed his legs, requiring a dual amputation.
“At the time of the injury, Mr. Marshall was an independent contractor for Russell Trucking. Our client PI&I was the licensed motor carrier for Russell’s trucks,” said Leffler, co-chair of Brouse McDowell’s Insurance Recovery Group.
“We settled with Mr. Marshall, but our insurer (RLI) denied us reimbursement of the settlement amount asserting that he was our employee and that our policy excluded coverage for employees,” she said. “Among other things, we had never issued Mr. Marshall a W-2 and our position was that he was not an employee.”
In April 2019, Brouse McDowell attorneys filed a lawsuit against RLI in Trumbull County Common Pleas Court for reimbursement of the claim, but the case was removed to the Northern District of Ohio the following month.
Two more delays would follow—one due to the closure of the court--before U.S. District Judge Benita Pearson made the final decision on Jan. 22 to move forward with the trial. There was one major caveat—all the proceedings would be held on Zoom.
Collins, Roche, Utley & Garner attorneys Richard Garner and David Lester represented defendant RLI. On Jan. 29, they filed a position statement objecting to the virtual format, raising questions about whether it comported with the court’s juror selection plan and federal law.
In a Supplemental Order filed on March 20, Judge Pearson reaffirmed her prior denial of RLI’s objection, writing there is nothing in the district’s jury selection plan that “requires that the jury serve from within the courthouse” or “prevents a trial from being held virtually.”
She also stressed that no potential juror was disqualified due to a lack of access to technology, noting that the Clerk of the Court followed the procedures in the district’s jury selection plan “just as it always does,” and produced “a jury pool that is as representative of the community as possible, just as it would if this trial were being held in person…
“Too long have the wheels of justice been halted by the pandemic that has gripped our nation for the past year. The Court must take advantage of the opportunity to start things moving again by holding this trial virtually,” she wrote.
The Akron Legal News reached out to Collins, Roche, Utley & Garner, but did not get a response.
While it may have been the first virtual jury trial in the Northern District of Ohio, Vansuch said it wasn’t the first one in the country.
“There have been virtual jury trials in the Western District of Washington and the Middle District of Florida, so Judge Pearson did have other examples to rely on when putting together a plan,” said Vansuch.
The changes she implemented impacted attorneys and jurors, beginning with the jury selection process, which was conducted virtually.
“Potential jurors were notified that the trial would be virtual,” said Vansuch. “Jurors who had technical issues or lacked access to the internet were told to come to the courthouse, where they were given tablets and allowed to utilize the court’s technology.
“All potential jurors also underwent a training and orientation with the court’s staff and IT personnel and received a copy of the Virtual Juror Reference Guide.”
To ensure that the process went smoothly, attorneys had to submit all exhibits to the court electronically so any objections could be handled before the trial began.
“Streamlining the presentation of evidence and testimony was more important in a virtual setting, and Brouse McDowell worked collaboratively with opposing counsel to minimize typical trial disruptions involving objections to evidence,” said Leffler.
“Both parties had discussions in advance about what exhibits would be submitted and were able to agree on the vast majority, which helped eliminate the need for us to go into breakout rooms to hold sidebars,” said Leffler. “Typically a lot of these discussions don’t happen until the morning of the trial.”
Witnesses were separated from questioning counsel and clients were separated from their attorneys in an effort to ensure that no coaching could take place.
Three conference rooms were set up at Brouse McDowell to accommodate the attorneys and their client.
“Matt was in one room, our client was in another and Wes and myself were in a room that we had converted into a studio,” said Leffler. “Most of our witnesses were located in Pennsylvania; one testified from a home office, and one was in a hotel conference room, which helped eliminate delays.”
Because the testimony was transcribed in real time Vansuch said he was able to monitor the court participants and work on motions and other filings throughout the day instead of waiting until the court recessed.
“As attorneys we needed to be more creative in the way we cross-examined witnesses and presented evidence to keep the jurors’ attention,” said Vansuch. “However, since everyone was on camera it was easier to see when a juror was losing interest.”
“In a typical courtroom setting, counsel cannot as easily measure the jurors’ reaction to the evidence being presented,” said Leffler. “The ability to do so in real time and throughout the trial was extraordinarily useful.”
While the majority of the jurors participated remotely, two chose to serve from the courthouse.
The trial lasted three and a half days, with the jury awarding $2 million to PI&I.
“I had some initial anxiety going into the trial because of the unknowns, but I would have to say there really wasn’t anything that I didn’t like about it,” said Leffler. “I felt confident about our ability to communicate effectively with the jury and the jurors seemed to be paying attention. In fact many of them took notes.
“I thought Judge Pearson did an incredible job in making sure everyone had an opportunity to be heard and was fully participating in the process.”
“I thought the process went quite well,” said Vansuch. “While virtual trials may not work for some types of cases where attorneys want the plaintiffs, defendants and jurors to be in the same room, I do think they can be effective in other cases, like business matters.”