How Is The Court System Currently Operating During The COVID-19 Pandemic In Nebraska?
In Nebraska, our governor is fairly relaxed about the mask mandate but our courts do require masks in the courthouse and the courtroom. We are having some trials in the courtroom and the judge will have a mask on, counsel will have masks on, and the litigants will have masks on. No one else is allowed in the courtroom, other than the court reporter. It can be difficult to spend three to four hours examining witnesses with a mask on, especially if you wear glasses. Some trials are still being conducted via Zoom. Civil jury trials are not happening; only criminal trials are being conducted to prevent speedy trial rights violations.
When a judge is observing a witness being examined, he or she is judging their demeanor, their facial expressions, and the articulation of certain words. When the witness is wearing a mask, these attributes are hidden. It is very challenging, but we have all been dealt the same hand of cards. None of us ever expected this, but we are all on the same playing field.
How Is A Trial Conducted Via Zoom?
During a Zoom trial, the judge and the court reporter will be in their offices at the courthouse. Each lawyer will be in their respective conference rooms. We are required to have our exhibits to the court two days in advance of the trial. The challenging part is that there are going to be exhibits that we may use in a rebuttal situation, where one of the opponents testifies about something different than what I expected and I have an exhibit that could rebut that testimony. On Zoom, I do not have any way to introduce that exhibit.
The other issue is that we have witnesses. I have a records custodian who is going to come in regarding some medical records. My expectation is that I am going to subpoena that records custodian to come into my office and lay foundation through testimony for the records that I want to introduce. Normally, they bring those records with them. In this case, not only do I need to subpoena the records custodian, I also need to get the records from that custodian prior to the trial, so I can get them to the judge and to opposing counsel two days in advance. We have other lay witnesses coming in, so I have them just coming to my office.
During the trial, I will face the laptop at my client or at my witness. I will be off-camera, asking questions. There are potential issues because I could have notes outside the view of the camera, telling the witness what to say. I could have other people in the room and no one else would know they were there. To me, the process seems ripe with issues, if someone wanted to challenge on appeal. However, this may be the way of the future, so we will just have to come up with protocol and rules to handle those issues.
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