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Dark Winter for Trial Lawyers

Today there is a wave of news. Delaware froze jury trials, although only through December 4. New York state courts have suspended jury trials indefinitely. New Jersey has continued all jury trials, except one that is in progress. Tennessee suspended jury trials through January 31. Vermont, one of the states least impacted by the pandemic, never resumed holding jury trials, and it has canceled its plans to do so in December. Alaska has shut down jury trials through at least January 4. Pennsylvania has suspended most courthouse operations, including jury trials, statewide—just days after leaving it up to individual jurisdictions. And the US District Court for the Southern District of Indiana has suspended all jury trials through January 25.

Meanwhile, in the suspended US District Court for the Eastern District of Texas breach of contract trial in Judge Amos Mazzant’s courtroom, which we’ve covered previously, now 13 participants—including two jurors, two people on the plaintiff’s team and three people on the defense—have tested positive for COVID-19. The trial had been set to resume November 30, but one juror didn’t feel comfortable returning to trial at any point, another said they wouldn’t feel comfortable unless the trial was postponed for a month and a third wouldn’t be able to return until December because of scheduling issues, Law360 reports. The result is a mistrial. Judge Mazzant is pushing all his scheduled December trials into 2021.

Trials Slow-Going in Delaware Federal Court

In the US District Court for the District of Delaware, Judge Richard G. Andrews reset a patent infringement trial for May 2021. The case was filed in 2015. The parties completed all their pre-trial activities during the pandemic, filing a final proposed pretrial order on June 30, 2020, for a trial that was set for August 18, where the court planned to present most of the witness testimony by remote video. The defendant objected, relying on Federal Rules of Civil Procedure (FRCP) 43 and arguing: “Many courts acknowledge that remote testimony impairs a fact finder’s ability to judge credibly.” We expect to see the cited cases—Perotti v. Quinones, 790 F.3d 712, 725-26 (7th Cir. 2015); United States v. Lawrence, 248 F.3d 300, 304 (4th Cir. 2001)—frequently in the months ahead. In response, the plaintiff requested a November 2020 trial. But the trial will not happen before May 2021.

Delaware Reopening Guidelines

Yesterday the US District Court for the District of Delaware issued eight pages of “Jury Restart Trial Guidelines.” It is guidance only; it lacks the force of law. Notably, it provides that all trials will be fully masked, except for witnesses, unless “another prophylactic measure is in place at the time, e.g., counsel speaking from a socially distanced location in the courtroom that can be readily cleaned prior to use by another.” Counsel are expected to clean the ELMO projector after each use. “Sidebars” will be handled by electronic transceiver. Exhibits will be digital to the extent possible. “In no case will contraband or firearms be provided to the jury.” The guidelines can be viewed here.

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