Green Sprouts

In the US District Court for the Western District of Texas, Judge Alan Albright’s closely watched patent trial is underway. The US District Court for the Eastern District of Virginia just issued a notice that criminal jury trials would resume March 1. In Long Island, jury selection has been set for the bellweather opioid trial brought by the New York Attorney General. Spring has sprung.



Monitoring the Reopening

Case numbers are falling. Vaccination is proceeding. We may be on track for a return to in-person jury trials in federal court. The question is: When will we get there? Today, we have three bits of news on that topic:

  • On Friday, the US District Court for the Northern District of Illinois continued the suspension of jury trials through April 5, 2021.
  • Also on Friday, the US District Court for the District of Minnesota continued the suspension of jury trials through May 2, 2021.
  • In the US District Court for the Southern District of New York, Judge Lorna Schofield has set a major patent infringement jury trial for May 3. Notably, however, the April 23 final pre-trial conference is telephonic.


In West Texas, the Jury Will Return

Returning once again to the stage of Judge Alan Albright’s patent case in the US District Court for the Western District of Texas:

In January, a second mandamus petition was unsuccessful in the US District Court for the Federal Circuit, notwithstanding its similarity to the first mandamus petition, which was successful. Thus, the stage was set for a patent trial in Waco, which will begin Monday. Yesterday, Judge Albright issued an order setting COVID-19 procedures for the trial. These include:

  • Before voir dire, jurors will be given N95 masks and face shields, and they will be instructed to wear both throughout voir dire, except they may remove the masks when answering questions.
  • Seven jurors will be selected. (This means they can only afford to lose one juror prior to the verdict.)
  • During the trial, the jurors will be in the jury box, at least six feet apart. They have the option of wearing an N95 mask or a face shield. The parties will sit in the gallery and will wear masks or shields while not speaking. Witnesses will not wear masks but will behind a plexiglass shield.
  • Bench conferences may be moved to chambers. (There is no mention of the headphone system that other courts have employed.)
  • The court will provide a “large air purifier to promote healthy airflow within the courtroom.”
  • In the courtroom, there will be a maximum of six party-affiliated trial participants per party, including corporate representatives and technical personnel, but not including any witness presently testifying.

So far, those procedures are typical of other pandemic trials. Then, like the coronavirus itself, things get novel:

  • All party-affiliated trial participants must be PCR tested within five days prior to their first appearance at the courthouse, with negative results confirmed prior to entering the courthouse.
  • Additionally, there will be mandatory daily testing by rapid antigen or PCR for all party-affiliated participants who enter the courthouse. Testing may be conduct morning-of or day-prior. “The parties may arrange for such testing to take place at a designated area around the Courthouse or may arrange for their own testing (e.g., at their hotel space).”
  • If anyone receives a positive test after traveling to Texas or after meeting in person with any participant in the trial, that person’s affiliated party must immediately notify the court and the other party immediately. “The party may but need not disclose the identity of the affected individual but will in good faith cooperate with the other party to provide information sufficient to identify whether and to what extent others have been in contact with the affected individual, including, at least, whether the affected individual previously was in the Courthouse or was in a shared hotel or preparation space with any other of the party’s trial participants.”
  • All party-affiliated trial participants are encouraged to use an N95 mask or a generally equivalent mask to be worn at all times in all shared spaces. “A mask is not required while a trial participant is eating or drinking, provided that he or she does so in a responsible manner and keeps at least a 6-foot distance from all other persons.”
  • “All party-affiliated trial participants shall endeavor to adhere to social distancing requirements, including keeping an at least 6-feet of distance from other trial participants and limiting Courthouse elevator occupancy to a maximum of two (2) riders at a time.”
  • “COVID-19 rapid antigen testing will be made available for jurors, the Court and its staff, and any non-party witnesses each morning of trial prior to the start of the trial day as practicable.” The parties will bear the cost of this. “Individuals are not allowed to enter the Courthouse until a negative test result has been received by any individual who has opted to be tested. Any individual who receives a positive result may opt to be re-tested to help rule out a false positive.”
  • “In the event that any juror or non-party witness receives a positive COVID-19 test, this fact (without disclosing the identity of the individual) will be communicated by the registered nurse(s) to a designated contact or contacts for each party. The parties will jointly notify the Court immediately thereafter and the parties and Court will convene a conference to discuss appropriate next steps.”
  • The Order then notes that one party (the defendant, which did not want the trial to go forward) “proposes that in the event that the Court or a member of its staff receives a positive COVID-19 test, this fact (without disclosing the identity of the individual) will be communicated to a designated contact for the Court and the parties and Court will convene a conference to discuss appropriate next steps.” It does not appear the court has accepted this proposal.

The public is permitted to listen to the trial proceedings by telephone. The number to access both voir dire and trial proceedings is +1 551 285 1373, Meeting ID 160 438 6723, Passcode 777035.



Reopening, Take 2?

Here’s the headline from yesterday’s Palm Beach Post: “Jury trials begin again in Palm Beach County as coronavirus infections continue to rise.”

Palm Beach County will begin holding jury trials for both criminal and civil cases in the coming weeks. According to the chief judge, Krista Marx, “It’s about sending the legal community and the community at large the message that we are stepping back into normalcy, cautiously and slowly.”

Guidelines for the Supreme Court of Florida require that a county’s positivity rate must be below 10% for two weeks to return to in-person proceedings. As of Monday, Palm Beach County’s rate was down to 8.7%. The Post reports: “Across the state during the past two weeks, Florida has averaged 9.3%, nearly double the 5% needed to combat the spread of the virus.”

The upcoming trials won’t be for everyone. According to the Post: “Those who are not an immediate party to cases, such as extended family and other onlookers, will be told to leave the courthouse. If they refuse, Marx said in her latest administrative order, they will be given a trespass order by the Palm Beach County Sheriff’s Office.”



McDermott’s litigation team monitors US courts as they reopen amid the ongoing COVID-19 public health crisis. 

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