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“The Court Regrets the Present Circumstances.”

On Wednesday, Judge James Selna of the US District Court for the Central District of California issued an order continuing a jury trial that was set for June 1. The order is worth reading in its entirety: Orange County is presently in the purple zone. The county would have to move two zones to the yellow zone before the court would begin conducting jury trials under the present General Order. That is unrealistic in light of the present trial date.   Several other factors compel a continuance. Criminal cases take priority under the Speedy Trial Act. This court has not tried a criminal case in over a year, and there is obviously a backlog which must be addressed once the court opens for jury trials. Moreover, there are many civil cases older than this case in the queue to be tried. There is no basis to advance this case ahead of other civil litigants who have also been waiting to go to trial.   Finally, there is a seven-week lead time to summon a...

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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.

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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.

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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...

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Optimism in East Texas

We return now to Judge Amos Mazzant's federal courtroom in Sherman, Texas. COVID-19 caused a mistrial last year, when jurors, lawyers and court staff become infected mid-trial. We covered it, most recently, here. Judge Mazzant has reset the jury trial for March 8, 2021. The trial date will either represent a return to normalcy or misplaced optimism. Time will tell. If it occurs, the two-week trial will overlap with the anniversary of the national shutdown.

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It’s Not Just the Pandemic, Unfortunately.

Even though jury trials are, with limited exceptions, on hold, many federal courthouses have managed to stay open throughout this winter surge of the virus. But as we know all too well here in Washington, DC, the pandemic is only one obstacle to normalcy. We just received this order from the US District Court for the District of Minnesota: Due to security threats made against federal buildings and courthouses in the District of Minnesota, the United States Courthouses located in St. Paul, Minneapolis and Fergus Falls will be closed from 12:00 a.m. on Sunday, January 17, 2021, through 5:00 a.m. on Thursday, January 21, 2021. At the United States Courthouse located in Duluth, the US District Court, US Bankruptcy Court and US Probation and Pretrial Office will be closed for the same period. The court has consulted with the US Marshal's Service and the General Services Administration in making this decision. We expect to see other such orders in the next several...

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All Eyes on Georgia

Americans are asking: “We know about Georgia's elections, but what about its courts?” We're here to tell you. On Friday, the Georgia Supreme Court extended its prohibition on jury trials. The order notes that when the emergency is finally lifted, it will still be another month before trials start. And “[i]t also should be recognized that there are substantial backlogs of unindicted and untried cases, and due to ongoing public health precautions, these proceedings will not occur at the scale or with the speed they occurred before the pandemic.” It would appear that civil trials are not returning to Georgia state court any time soon. In federal court, the US District Court for the Northern District of Georgia, in Atlanta, has continued all jury trials that were set for January and February.

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The Jury Returns…Returns.

Happy New Year! 2021 begins as 2020 ended: mostly without jury trials. Some are determined to change that, however, which brings us to the latest in the saga of Judge Alan Albright's US District Court for the Western District of Texas case, which we covered immediately below (and elsewhere). When we left off, Judge Albright had retransferred the case for trial purposes from Austin to Waco so that he could hold a jury trial in January. The defendant had petitioned the US Court of Appeals for the Federal Circuit for mandamus to stop the trial. We noted that “the panel could grant the petition without addressing whether trials should be held in the current environment.” And in fact, that is exactly what happened. On December 23, the Federal Circuit found that Judge Albright had incorrectly applied the US Court of Appeals for the Fifth Circuit standard for retransfer under 28 USC § 1404 and lacked the inherent authority to retransfer. But then, the Federal...

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The Latest on Judge Albright’s January Trial

Readers will recall our coverage of Judge Alan Albright’s re-transfer of an Austin patent case to Waco so that the court could hold a jury trial in January as scheduled. In that case, the defendant has sought mandamus from the US Court of Appeals for the Federal Circuit to stop the trial, but the petition is not expressly predicated on COVID-19 issues. Briefing is complete, and the panel will rule soon—but the panel could grant the petition without addressing whether trials should be held in the current environment. Meanwhile, in Judge Albright’s court, the parties continue to debate whether the trial should go forward. The transcript of last week’s motion hearing is a must-read. Introducing his argument, the defendant’s counsel told Judge Albright: “We take this step to avoid the potentially dire outcome for any particular person’s health or life.” This is not the type of remark we saw in patent cases before 2020. The transcript is...

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Competing Approaches in South Carolina

Last week saw differing approaches to the pandemic in South Carolina. In the state court system, Chief Justice Don Beatty suspended all state civil and criminal jury trials, finding “that in light of the ongoing increase in COVID-19 cases throughout South Carolina, and the expectation by the medical community and experts that the number of positive cases will continue to increase in the near future, it is prudent to once again make changes to the operations of the circuit courts for the protection of those who work within the courts, as well as those who serve our state by participating in jury service…It is ordered that the circuit courts statewide shall not commence any jury trial after December 4, 2020.” In federal court, however, US District Judge J. Michelle Childs did not react well to a defendant’s suggestion that a requested stay might not matter that much anyway, given the pandemic. She wrote: “Defendant is severely mistaken that ‘due to the global...

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

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