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Michigan Court of Appeals: Pandemic-Related Trial Protocols Did Not Deprive Plaintiff of a Fair Trial

The Michigan Court of Appeals recently decided that certain protocols a trial court implemented during the COVID-19 pandemic – remote voir dire, social distancing and masking – did not deprive the plaintiff of a fair trial in a civil case. 


The plaintiff was injured in two car accidents, one in December 2016 and a second in August 2017, and alleged she injured her neck and back in the accidents. Consistent with Michigan law, she sought certain benefits from her automobile insurer. However, the insurer believed the injuries preceded the accidents and disputed her claim. The plaintiff ultimately sued the carrier and the case went to trial. 

The trial occurred “during the midst of the COVID-19 pandemic,” so the court put in place several protocols that were common during the pandemic – social distancing and masking – to protect the trial participants and the jurors and conducted voir dire remotely via Zoom. 

The plaintiff lost at trial and in a post-judgment motion challenged the trial court’s protocols, saying it denied her the right to a fair trial. The trial court disagreed and denied the motion, but the plaintiff raised this same issue on appeal. 

The Decision

The Michigan Court of Appeals concluded that the plaintiff failed to prove she did not have a fair trial. In upholding the trial court’s procedures, the Court of Appeals explained that the trial court’s protocols complied with administrative orders implemented by the Michigan Supreme Court during the pandemic. Also, there was no evidence the jurors were unable to see or hear the evidence, contrary to the plaintiff’s argument. 

The Court of Appeals further emphasized that the trial court repeatedly instructed the jurors that they should say something if they could not hear the attorneys, the judge or the witnesses, and the trial court judge made sure the jurors were able to see everything going on in the courtroom. As a result, the trial court’s precautions, the Court said, did not deprive the plaintiff of a fair trial. 

The plaintiff further argued that the trial was unfair because potential jurors could opt out of jury duty simply because they did not want to participate during the pandemic, but this argument was not supported by the record, which showed that jurors could only be excused for the usual reasons – either for cause or through a preemptory challenge. And during remote voir dire, the trial court told the potential jurors they would report to court and attend the trial in person if selected. The Court of Appeals concluded that these procedures did not create an unfair trial. 

The COVID-19 pandemic changed many things about our everyday lives, and it changed how courts had to operate. Trial courts were forced to implement protocols to ensure the safety of jurors and everyone else participating in trials. The Michigan Court of Appeals concluded that those precautions did not deny a plaintiff in a civil case of a fair trial.

© 2022 Wilson ElserNational Law Review, Volume XII, Number 196

About this Author

William S. Cook Attorney Litigation Wilson Elser Law Firm Detroit

William Cook focuses his practice on appellate work, general liability and casualty, employment law and insurance coverage litigation. Throughout his career, William has handled appeals before state appellate courts in Michigan, Illinois and California in addition to appeals before the Sixth and Seventh Circuits. The appeals have covered numerous topics ranging from contract and tort issues to insurance coverage disputes, including cases involving bad faith in which he mounts a particularly aggressive defense.

William’s practice also involves...

Matthew High Associate Wilson Elser Moskowitz Edelman & Dicker LLP

Matthew High represents established businesses and individuals in all aspects of civil litigation. His practice encompasses the defense of clients in employment law, commercial litigation, automobile liability and general liability matters.

Prior to joining Wilson Elser, Matt was the Director of Legal and Labor Affairs for a local school district. In that role, he negotiated collective bargaining agreements, conducted employee investigations, and handled matters that involved government agencies such as the Michigan Occupational Safety and...