Seating a Civil Jury During a Pandemic

By the Honorable David Keenan, Judicial Advisor

It’s early on a Monday morning.  You lost an hour’s sleep yesterday because of Daylight Saving Time.  Your city recently emerged from a record-breaking 30 days with rain in a single month and 80 straight cloudy days. The stock market is down 2,000 points.  Oh, and you live in King County—ground zero in the U.S. for what will soon be declared a pandemic.  But good news:  You’ve been summoned for jury duty!

This was the situation confronting roughly 98 people who were civic-minded enough to report for jury duty at the King County Courthouse in Downtown Seattle the morning of March 9th, during one of the most challenging times in recent history.  When people were being told not to gather in crowds and to engage in something called “social distancing,” our prospective jurors dutifully appeared on the ground floor of the courthouse to potentially do just the opposite.

I was starting a civil trial the morning of March 9th, and the facts concerning COVID-19 and the disease’s[1] implications for our court were developing quickly.  Most area schools and shops and restaurants were still open, and as the state court of general jurisdiction in a county of some 2 million people, by necessity, so were we.  We knew that our county had more confirmed COVID-19 cases than anyplace else in the nation, but we also had litigants who looked to our courts for protection and to vindicate their rights.  So, I called up 48 jurors to our 8th floor courtroom to begin jury selection.

Space and time were my two most immediate concerns.  Space to keep jurors apart, and the time necessary to get empaneled.  Space is often an issue during jury selection.  Our courtroom comfortably seats around 50 jurors—60 in a pinch.  Maintaining the CDC-recommended 6 feet between individuals was not workable, unless I brought the jurors up in small groups.  But working in batches of jurors would mean a longer overall process to seat a jury.  We seated 14 in the jury box and 34 in the gallery, and they stared anxiously at counsel and the bench, wondering how long before they could distance themselves from each other and the largest public courthouse serving America’s COVID-19 hotbed.  They wouldn’t have to wait long.

We all felt the clock ticking, and I needed to control the pace of jury selection more than usual.  I had first considered having prospective jurors complete hardship and issue questionnaires in the jury assembly room before calling them to our courtroom, reasoning that I could screen out jurors in advance who couldn’t or shouldn’t serve in this particular case.  But that would have meant the same group of 48 jurors possibly sitting in a different room with another 50 jurors, completing two questionnaires, which I would then need to review—while they waited.  To move this along, I concluded that I needed to gather these jurors and move quickly through jury selection in a way that balanced the rights of the parties to a fair and  impartial jury with the public health needs of our jurors and court staff.

The 98 jurors who appeared at the King County Courthouse the morning of March 9th represented about half of what we normally get.  That morning, consistent with public health guidelines, the court had posted signs excusing jurors with various health conditions, those 60 and older, the sick, and even those who had recently been around a sick person.  I was surprised that anyone showed up, but bless those who did.  One of the prospective jurors wore a hospital mask, but assured me that she wasn’t sick—just anxious—they all were.  Because court leadership had acted quickly to proactively screen out those at the greatest risk, none of my 48 prospective jurors asked to be excused for health reasons—and only a few even asked to be excused because of scheduling concerns.  Childcare is always a concern when picking a jury, and yet, even with some large area school districts already closed, no one asked to be excused for any reason related to COVID-19.  We got through hardships in about five minutes.

I spent maybe another five minutes on general questions for our prospective jurors.  The lawyers had earlier requested that I ask a long set of questions with multiple follow-up questions; even without a burgeoning pandemic, I would’ve probably rejected that approach.  I asked the questions, called out the numbers of responding jurors, and we moved on.  (I always give the lawyers hard copies of my questions in advance, with check-boxes numbered for each prospective juror, so the lawyers can quickly note which jurors respond to which questions.)

Moving on to the heart of voir dire, I gave each side two rounds of fifteen minutes.  I wanted to move this along, but the lawyers needed time to gather enough information to meaningfully exercise their challenges.  No one complained.  We had very competent and cooperative counsel, and they understood that we needed to seat a jury quickly in order to disperse this crowd and start the trial before unfolding events overtook us.  The lawyers were efficient and sensitive with the jurors, and didn’t use all their time.  (Judges won’t be surprised to hear this; lawyers often think they need more time than is truly necessary to get the information they need to exercise a challenge.  Nothing like a public health crisis to get us all focused on what’s important.)

It was about 80 minutes from the time the 48 jurors walked into Courtroom W-864 to the time we swore in the 14 who would serve as jurors in this civil trial.  Under the circumstances, even that relatively short amount of time felt painfully long.  This is not to make the scene seem more dramatic than it was.  We were picking a jury, and I was not the only judge that day with jurors.  I am not a first responder.  Even without a virus spreading around the globe, sitting on the bench means that I get to maintain social distance every day!  This was not a situation where “seconds count.”  I recount the story only to emphasize that our prospective jurors, the parties, counsel, and staff—all of us, in any courtroom, were dealing with uncertainty.  They all did great.

The public health crisis created by COVID-19 dramatically expanded over the course of the six-day trial.  When voir dire began, most schools and restaurants were still open, and large gatherings were still permitted.  By the time I released the jury on March 16th—just a week after we began—all schools were closed, no one could dine in a restaurant, and gatherings of any size were either forbidden or allowed only with severe restrictions.  International borders were open when we started; many were closed when we finished.

Throughout the trial, I tried to balance the need to be transparent and keep the jury informed, with my concern about being alarmist, and the reluctance I always have to talk with the jury during the trial for any reason in anything but the most basic terms.  I wanted to know how the jurors were feeling, but I didn’t want to do anything that might make them feel pressured to do anything less than listen to all of the evidence and deliberate with their fellow jurors in an effort to reach a just and proper verdict.

Our wonderful Bailiff, Beatrice Marquez, did a superb job of checking in with the jury and relaying their feelings to me, and our superb clerk, Barbara Kubasu, was calm and professional as she carefully handled exhibits which had been touched by numerous hands.  Remarkably, none of the jurors expressed any urgent concerns.  Mostly, the jurors just wanted to know if the courthouse was going to close.  The media was reporting that other area courthouses were closing due to instances of potential COVID-19 exposure, and the jurors understandably wanted to know if the King County Courthouse would be next.  When I later spoke with the jury after I had released them, they told me that they wished we’d been more proactive in emailing or calling them each morning to let them know that the courthouse was still open and that they should still report.  Some of the jurors understandably expressed confusion in trying to distinguish among courthouse closures.  (For example, when it was reported that the nearby Seattle Municipal Court closed due to a staff member with COVID-19, some of the jurors weren’t sure if that meant all courts would close, and didn’t understand the difference between a municipal court and a superior court.)  Communication was key, and I know now that I could’ve done better.

I did take care each day to thank the jurors for being there.  I never used the words “COVID-19” or “coronavirus.”  I generally referred to the “public health crisis.”  I wasn’t quite sure which phrasing to us, but I wanted to address the jurors in a way that acknowledged their sacrifice without continually sounding the alarm.  Later, the jurors told me that they actually appreciated that I didn’t say “coronavirus,” because they felt triggered and anxious each time they heard the word.  As one juror told me after the trial concluded:  “We all knew what you were talking about.  You didn’t have to say exactly what it was.”

We are normally only in trial Monday through Thursday, saving Fridays for dispositive motions hearings and sentencing calendars.  Everyone rearranged their schedules so we could hold trial on Friday—Friday the 13th of all days!  The jury got the case late Friday morning, and I figured they’d be anxious to reach a verdict and get out of what by then was an increasingly empty courthouse.  I was surprised when we reached the end of the day on Friday and the jury said it was coming back Monday to resume deliberations.   I was quite concerned at that point that events would unfold so rapidly over the weekend that our jurors wouldn’t or couldn’t return.

Monday morning, at 8:50 a.m., all twelve jurors were back.  Rather than send them back into the jury room attached to our courtroom to sit around a conference table, we let them use the entire courtroom for deliberations so they could spread out.  They later told me that they were so grateful to have that space.  By the end of the day Monday, the trial was over.  Three days earlier, Presiding Judge Jim Rogers had made the difficult but important decision to suspend summoning jurors for several weeks.  This jury would be among the last in the courthouse for quite some time, and I told them that.

As I write this in my chambers on March 17th, many area courthouses are closed, and the King County Superior Court is doing its best to remain open in a limited capacity to fill pressing needs for things like protection orders and shelter care for vulnerable children, while also keeping staff and judicial officers safe.  Many are working from home where feasible, but we still need judicial officers in the courthouse to serve our community.  Especially in times of crisis, people look to the courts for protection.  We have been fortunate in the King County Superior Court to have leaders who strive to balance the needs of the public we serve with the needs of those serving.  Our judges and staff—from the bailiffs and clerks and administrative support to the facilities and maintenance workers constantly cleaning the door handles—have continued to show up for the community and each other.

On January 21st, officials confirmed the first case of COVID-19 in America about thirty miles north of our courthouse.  As of March 16th, there were more than 900 cases in Washington—including 488 cases (nearly 12 percent of all confirmed cases in the U.S.) and 43 deaths (more than half of all deaths in the U.S.) in the County our court serves.  The courthouse is quiet, but it’s not empty—it can’t be.  Not even in a pandemic.

I give out certificates of appreciation to jurors at the end of every trial.  On top of the $10 per day we pay jurors, the certificate isn’t much; I joke that it’s suitable for the refrigerator.  The certificate reads in part:  “This certificate is awarded in recognition of this valuable service in the Administration of Justice to the people of the State of Washington.”  Until now, I’d not given the language much thought.  This time, before presenting certificates to the jurors, I added three words:  “This certificate is awarded in recognition of this valuable service in the Administration of Justice to the people of the State of Washington, during a pandemic.”  The jurors laughed when I read them the language, and we all knew that we’d shared in something special during a trying time in our nation’s history.

The Honorable David Keenan is a Superior Court Judge in King County, Washington, and a judicial advisor for the Civil Jury Project.


[1] Here, I use the name of the disease—COVID-19—rather than the technical name of the virus—SARS-CoV-2—AKA, Coronavirus.