Masks At Trial – A Blessing And Curse For Lawyers, Clients and Witnesses

Transcription:

Brendan Lupetin:
Let me ask you this, what kind of mask did you wear?

Peter Pentony:
You know, I just used a typical medical mask. I went back and forth about that. You know, we’re so precise. We think about the tie we’re gonna wear, the shoes. You know, are we going to wear a suit or are we going to wear a sport coat and slacks? You know, we spend all that time. And then the night before trial, I was like – dang, I got to think of what mask to put on!  And I had a couple of different ones, like we all do at this point in time, you get one that a caring family members made and you get one that you bought from the store, and they all have different designs on them. I probably worried about it too much and decided that pretty much, I’m just going to stick with the light blue medical type mask.

Brendan Lupetin:
And in hindsight, are you happy that you went with that mask?

Peter Pentony:
Yeah, I don’t have any regrets about it.  I had a couple of military or ex-military witnesses, and so when they came in to trial they had the American flags on their mask, when they came in to testify and that did not displease me at all. But it wasn’t planned ahead of time.

Brendan Lupetin:
So I ask because on a lot of different list serves, I’m seeing a lot of lawyers debate and clearly stress out about what kind of mask they should wear. On one, I think it was on the “trial by human” list serve, people were talking about wearing the clear masks, so you can see your mouth. And as a little anecdote on the side, my partner, Greg Unatin who tried, we try every case together and we’re great trial partners. He was talking about that. He was thinking he wanted to get the clear mask. And I forbid him, and I said, you will not wear a clear mask during this trial because I personally find them so gross because they have all the condensation and like the wetness in them. And I just think it looks very bizarre. And most people nowadays, we’ve all kind of gotten accustomed to masks. I’m always off-put the rare times I see someone with one of those clear masks, and I thought that’s probably the way the jury is going to feel. They’re going to be used to a certain type of mask. So let’s stick with what people are used to.

Peter Pentony:
It’s interesting you say that. I would have killed for everybody to have clear masks on.  Now, I will say this, once we got through voir dire, the judge did allow whoever was speaking to remove his or her mask. So when I was examining a witness or giving my opening statement, my mask was off. I was far from the jury. I mean, the trade-off was, we were going to be set way back to avoid any potential, you know, air spread. But we were able to take a mask off. Likewise, the witness was allowed to remove his or her mask when testifying. And so, the court was great. These security gentlemen in the courtroom were awesome. They had these little covers that they put over the microphone, like little microphone condoms. They put it on over the whole thing. And each person had their own cover that you put on the microphone. And as soon as someone left either the council podium or the witness stand, two of the security guys would come over, they would spray it all down, wipe it all off and make sure it was sanitized before the next witness or lawyer approached that microphone. So with those precautions, we were allowed to take off the masks. But I have hearing impairment, I rely on hearing aids, but also a lot on lip reading. So anytime that someone was masked, it was a real challenge for me,

Brendan Lupetin:
If it was already difficult to read jurors, it’s that much harder now with the masks on?

Peter Pentony:
Yeah. The other thing I noticed with that, about halfway through trial, I realized that it was significant that my client was, masked. Hadn’t thought through the benefits and possible detrimental effects of that before the trial. But one thing happened during the trial that made me realize I needed to do some things different because my guy was masked. One of his teenage sons was fairly aggressively cross-examined by the defense. You know, did your dad ever complained about back pain before? Just really getting after him pretty good. And then just at the end of that examination, we took a break. So we went into the conference room and where we were generally comfortable removing our masks, my client and I, and my partner, Cory Ford, we were in the conference room, and he took off his mask and I could see he was incensed. He was furious. He was just ready to punch a hole in the wall. And if he’d been unmasked during the trial, the jury would have seen that, they would have known, they would have recognized that maybe the defense had pushed things a little too far, and that this was taking a toll on my client, just being there and seeing that. And I realized that they wouldn’t have any idea at all. So fortunately he hadn’t yet testified. And when he testified, I made sure I asked him about it. You know, how’d you feel when you were just sitting there two hours, ago when you saw your son getting cross examine like that? And he was able to express his emotions at the time really well. He was enough removed from it that he was collected in the way he described it, but he said, I was so mad. He doesn’t deserve that. He only came here to tell the truth. I raised him to be a truth teller, and he was here doing that. And for him to be treated like that, it made me so mad that I have to go through this process to get things balanced. And we talked about how he was. He decided at that moment that he was not going to have his daughter come testify because he didn’t want to have her exposed to that. It was really powerful testimony, but I would have just let his reaction speak for itself if he hadn’t had a mask on.

Brendan Lupetin:
Its so interesting.  I hadn’t thought about that. I think it, also to me, and I think back to different trials I’ve tried. And, that it’s a bit of a double-edged sword though, in the sense that there have certainly been times in cases I’ve tried in the past where I wish my client had a mask on their face, like they’re talking or saying things, and I’m trying to say, please don’t do that. You know? I mean, cause that can backfire.  I think in your case, you’re right. You would have liked for the jury to see how incensed the dad was at watching his son get improperly cross-examined. But on the other hand, there’s going to be those times where, as much as you’ve coached your client, the jury is always watching you, they still can’t help themselves. And mouthing words and things like that, that could really give a bad impression about themselves. And it’s also interesting that you like to have your client at the table with you, right?

Peter Pentony:
Yeah. I haven’t always, but yeah, generally I like to have them there.

Brendan Lupetin:
So just as an aside, my thinking over time has sort of been when I first started trying cases, I always had them sitting at the table with me, and then I started to feel one, it was a distraction; and two, if I could have them sort of placed somewhere else, then there was less of a focus on them. And generally speaking, I always want there to be less of a focus on my client and whichever manner, my personal preference. So the way our trial set up, our clients were actually able to sit behind the jury for the most part, which to me was, I think was preferable. But I think you have to always just do what’s comfortable with you, right?

Peter Pentony:
Yeah, it depends on the client for sure. There’s a lot of smart thinking out there about when not to do it and when to do it. I knew my guy would be able to contain himself generally. He wasn’t gonna be grabbing my shoulder before every third question to suggest something to me. So, I can count on him to be there and behave himself.

Brendan Lupetin:
And it sounds like you really had a rock star client. So that’s a real blessing, to go try a case with a client like that.

Peter Pentony:
Great guy, look, this family was incredible. My job was to not mess up their case.