I recently had the pleasure of interviewing King County Superior Court Chief Civil Judge Regina Cahan. We generally spoke about the general impacts the pandemic has had on civil practice in the King County Superior Courts, as well as other considerations and observations she has had since the pandemic began. Below is a summary of our conversation and the insight Judge Cahan has graciously provided for our members’ benefits.

Brief background.

Judge Cahan obtained her bachelor’s degree from the University of Illinois and later obtained both a master’s degree in social work and her law degree from the University of Wisconsin. She began her legal career in a small civil rights firm in Madison, Wisconsin. She began working with the King County Prosecuting Attorney’s Office in 1989, where she spent nearly a decade in the criminal division handling homicide, sex crime, and domestic violence cases. In 1999, she transferred to the civil division, where she spent approximately nine years working as a labor and employment law attorney for King County. Judge Cahan was elected to the King County Superior Court bench on October 1, 2008. She assumed the position previously occupied by the Hon. Glenna Hall, who retired from the bench earlier that year.

Biggest impacts to the Courts following the pandemic.

Judge Cahan was appointed as Chief Civil Judge just before the pandemic hit, in early 2020. At the time, she did not realize the impact COVID-19 would have on her appointment. Like all of us, she also did not realize she would still be dealing with COVID-19 concerns! Judge Cahan explained that the most challenging impacts the pandemic has had on civil practice in the Courts have been that everything has changed, from how to present to the ex parte department, filing and hearing motions, to trial. The pros and perks to impacts on the Courts from the pandemic include easier and more affordable access for individuals hiring lawyers; and convenience and lower overall legal fees for parties due to the prevalence of remote proceedings. The cons or largest challenges to the Courts following the pandemic include the limit of physical space for in-person matters. Currently, all civil proceedings are being held remotely. Due to the backlog in criminal cases, there has been an increase in the number of judges hearing criminal matters and therefore, the physical restraints do not allow the Courts to allow civil matters to be heard in-person, without special permission. For motions for in-person trials, these would be made to the judge presiding over your case, however, the lack of space is a large consideration as to why many of these motions are categorically denied.

Is remote voir dire here to stay? It seems likely.

All voir dire is currently being done remotely, even in criminal cases. There is a proposed rule requesting that voir dire continue remotely that is currently pending at the Supreme Court of Washington. From Judge Cahan’s perspective and that of her colleagues on the bench, remote voir dire saves a lot of money and jurors love it. Instead of having to come downtown and wait in the Courts all day, remote voir dire is a one-hour commitment where jurors fill out a questionnaire and sit on Zoom while in the comfort of their homes. Judge Cahan also explained that preliminary results from a study being done by the Courts is revealing that remote voir dire and jury selection leads to more jury diversity. Judge Cahan has heard the same is true in federal district court. This was surprising to me, but it seems logical since almost everyone these days has a smartphone with Zoom capabilities. Judge Cahan’s advice for practitioners is to learn how to conduct voir dire remotely by consulting with other attorneys who have done it.

Will remote trials be here to stay as well? Judge Cahan believes that there may always be the possibility of having bench trials proceed remotely with the consent of the parties, whereas jury trials seem more likely to resume in-person eventually with remote voir dire staying in place, as long as this is adopted by the Supreme Court of Washington.

Judge Cahan’s tips on how to have a successful remote trial.

“Practice practice practice and prep prep prep. Remote trials take more preparation.” Judge Cahan could not stress enough how important it is to prepare specifically not only for trial, but for doing the trial remotely. First, prepare your witnesses; they should not be appearing over Zoom for the first time during trial. Second, invest in the fancy equipment and tools necessary, such as microphones, lights, and sufficient internet bandwidth. Third, it’s time for attorneys to know how to share screens, highlight, zoom into exhibits, etc. Zoom is here to stay, and the Courts are having a hard time tolerating issues with attorneys not knowing how to use the technology. It is not their bailiff's job to help you with your technology, either. Fourth, if it is feasible, hire a litigation consultation who will assist with digital evidence to mitigate any technology issues. This is worth the investment because three seconds feels like ten minutes to jurors in a remote jury trial. Fifth, work with opposing counsel to figure out exhibits and streamline issues where possible. Judge Cahan emphasized that attorneys working together can mitigate and avoid a lot of issues with having to move remote jurors into virtual waiting rooms over evidentiary issues. Do you really want to move jurors into a waiting room over foundation of an exhibit that could have been dealt with pre-trial or during motions in limine? While it is faster in some ways to zip jurors in and out of virtual waiting or breakout rooms, this does ruin the flow of trial and, when people are at home, putting them in virtual waiting rooms can cause further delays, such as jurors being distracted by children or spouses, restroom breaks will occur at different times, or jurors will be missing from their screens. Remote trials require counsel to work together more with respect to exhibits, and the judges notice and appreciate it.

Judge Cahan and I also discussed whether and to what extent the “drama” of trial is impacted by being conducted virtually. Judge Cahan commented that in-person trial is more like theater, remote trials are more like TV. While the atmosphere of trial is lost when it’s done virtually, jurors are forced to focus on the evidence, the person in front of them, the merits of the case and not as much on the theatrics. This is a reason why remote trials require more preparation than in-person trials: the evidence must shine and any lack of preparation on the part of the attorney is even further highlighted than would be the case in person.

Case assignments, use of interpreters, and open communication with the Courts.

Judge Cahan spends a lot of effort trying her best to alleviate the Courts’ backlog by making sure that cases that are on standby are pushed forward if and when there is an opening. She underscored how disappointing and frustrating it can be where she sees an open courtroom, pulls a case off standby to start the following week, but then counsel explains that they are not available. The takeaway: if you have a case on standby, be ready for your trial to begin the entire time or notify the Court immediately about any conflicts a few weeks out. If you are not ready for trial and are on standby: file a motion to continue. Judge Cahan also expressed that there has been a lot of difficulty obtaining translators since she is seeing a current shortage. If your case needs a translator, let the Courts known as soon as possible as well as how long the translator will be needed and what languages since the Courts expend a lot of effort to get interpreters. This is an issue that counsel should be ready to discuss in detail at the pre-trial conference.

Final remarks.

Lastly, Judge Cahan wanted to stress the utmost appreciation she has for all those who work in the King County Superior Court and the Clerk’s office. She wanted to acknowledge all the tireless efforts from the Court staff to allow it to be one of the most productive courts in the country during the pandemic. She is so appreciative and proud of all their hard work in such an unprecedented time. On behalf of WDTL, we want to thank Judge Cahan for her willingness to be interviewed, her candor, and tips. It was an absolute pleasure to be able to have such an open discussion with her about something that has become our new reality.