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November 16, 2021

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Sept. 28, 2021

Trial During COVID-19: Three Associates Share Their Experiences

By Christopher Shaun Polston, Mary C. Biscoe-Hall, Ryan M. Cullen

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After shutting down for much of 2020 to protect public safety during the COVID-19 pandemic, courts across the country have slowly and cautiously reopened their courtrooms in 2021 to hold virtual and in-person trials in an effort to break the logjam of their ever growing caseloads. Nelson Mullins has had a very busy and successful year trying cases in this COVID-19 landscape, which has presented new and unique challenges. Three Nelson Mullins associates provide their perspective on what they learned during a few of those trials:

Shaun Polston (Atlanta): I assisted in three of the many product liability trials Nelson Mullins has tried this year on remand from a multi-district litigation. Our four-week August trial exemplifies the most important lesson I learned from them—be prepared to adapt. After the first week of trial, the court issued a COVID-19 order effectively limiting trial team attendance to the handful of lawyers at counsel table. We adapted. Those of us that provided real-time support to the team at counsel table had to follow the trial remotely. Be prepared in case your court does not provide remote access.

This trial, as with the others, was to be completely in-person. But after weeks of testimony, after Plaintiff had rested, and midway through our case-in-chief, the dreaded happened. A critical witness tested positive for COVID-19 after preparing with our trial team to testify the next day despite everyone being vaccinated and taking precautions. Again, we adapted. The trial went hybrid, with two of our three trial lawyers finishing the remaining two weeks of trial remotely, including examining this and other witnesses testifying by Zoom. Be adaptable. Consider reducing any potential break-through exposure by segregating your trial team as we did, and become comfortable with remote technology just in case.

I also learned to become a master of the local rules and standing orders. Read them, know them, and certainly comply with them. Our court reluctantly had to issue an order — the first in his nearly 20 years on the bench — compelling all opposing counsel (not our team) to certify they had read and would comply with them in our case before they could practice before the court. Lastly, be the first one in the war room every morning. Something always needs to be done to assist your team for each trial day.

Mary Biscoe-Hall (Baltimore): After assisting with five products liability trials at Nelson Mullins and handling dozens of trials in the earlier part of my career solo, I have come to realize that confidence in yourself and your abilities is one of the most important attributes that a young lawyer can embody. Confidence is cultivated through a good amount of self-awareness, reflection, and practice.  As such, during trial, I say “yes” to, or ask for, all opportunities to grow my skillset. The fact is, if you never allow yourself to practice, then you will never master your trade.

In January 2021, I assisted with a products liability matter that was to be tried completely remotely due to the COVID-19 pandemic. Our trial team consisted of six attorneys — me being one of the most junior on the case. I viewed this remote platform as an opportunity to become more engaged in trial because my attendance was no longer limited to the amount of days I would be permitted to sit in the courtroom. Given my trial experience and knowledge of the case, I was confident that my insights could be useful, but I had to find a way to ensure that my contributions were value-add only. As such, instead of solely focusing on examination outlines and legal research, I made it my business to also focus on the practical side of things and get to know the judge and opposing counsel inside and out. In doing so, during calls with the client, I was able to actively participate in discussions regarding trial strategy utilizing the judge’s prior rulings and exchanges between all parties and the judge during motions practice as the basis for my suggestions. These contributions proved to be invaluable at a few critical junctures in the case. At the conclusion of the case, the client conveyed his appreciation for my contributions to the lead trial counsel and praised my maturity and confidence to speak up during strategy calls.

The lesson learned for me was (as cheesy as it sounds) to believe in yourself and your abilities. Seek out opportunities to be an asset to your team and client even if you are the most junior in the room. At the end of the day, our job is to serve the client to the best of our ability. The client does not care if the “good idea” comes from an associate or a partner.

Ryan Cullen (Nashville): Since joining Nelson Mullins in May 2021, a return to normalcy in the form of jury trials is upon us. Prior to joining Nelson Mullins, I worked at a firm in Maryland where I was part of multiple product liability trial teams traveling across this country. The fourth quarter of 2021 and 2022 are shaping up to be extremely busy. With 12 trials scheduled, our team is in overdrive preparing each case for trial. 

In assisting the senior partner try these cases, experiences at prior trials shed light on the role of the associate.  An associate’s main role is to prepare the senior partner for trial. The most important way of doing so is to know the law. Anticipate evidentiary issues and understand every element of a specific cause of action. The senior partner will focus on overarching themes, opening, closing, and direct/cross-examinations. Our role is to give the partner the best (and correct) ingredients to cook a 5-star meal.

Below is a list of things I’ve learned from previous trials:

  • Know that the jury is watching every team member, even if you are seated in the pews behind the trial table.
  • Keep a list of every exhibit and note whether they’ve been admitted into evidence.  The Court will have their own list, and before deliberations, the Court will determine which exhibits to send back with the jury.
  • Keep notes of trial testimony to draft the directed verdict motion after plaintiff’s case.  Knowing each element of a cause of action is vital in trial preparation and to understand whether the opposing party has met their burden on every element.
  • During jury selection, compile a spreadsheet on each potential juror with their age, occupation, marital status, children, and any other attribute by searching on social media (Facebook, Instagram) and Google.

Mary Biscoe-Hall, Ryan Cullen, and Shaun Polston are associates at Nelson Mullins and work in the firm's well-recognized products liability litigation practice. Below, they share their experiences working on trial teams during the COVID-19 pandemic and lessons they've learned along the way.