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In WDTex, the Fight Escalates

Last week we told you about Judge Alan Albright’s determination to keep trying patent cases. He had a trial scheduled for January in Austin, where we had transferred the case pursuant to 28 U.S.C. § 1404 while leaving himself as the assigned judge. Trials are not being held in the Austin courthouse, however, so he transferred the case back to Waco. Now the defendant has moved to postpone the trial until after March, attaching a declaration from the Chief of the Division of Infectious Diseases at Baylor University Medical Center stating that the current state of the pandemic "poses a significant potential risk to the health, safety and life of participants in a trial starting January 11, 2021, in Waco or Austin, Texas, as well as to the communities in the Division where trial is held and communities in places where out-of-state participants will return after trial." According to the declaration, there is a 74% chance of "at least one person having COVID-19...

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A Mistrial, without a Positive Case

In Charlotte, North Carolina, the Superior Court for Mecklenburg County attempted to hold its first pandemic jury trial, starting November 16. Things did not go well. First, during the evidence phase, a jury was excused after reporting a possible exposure. He later tested negative. Then, jury deliberations were suspended for a week when a juror began experiencing COVID-19-like symptoms. That juror too tested negative. Then, on Monday, a jury who traveled during Thanksgiving notified the court of being exposed to relatives who were not showing COVID-19 symptoms. The courthouse was trying to arrange testing for that juror. The result? A mistrial, without a positive test. Meanwhile, the county reports that more than 700 felony cases are awaiting trial, including 100 homicide cases and another 150 involving rapes, assaults and other violent offenses. According to the Charlotte Observer, “the statewide surge in new COVID-19 cases is already surpassing some of the...

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Waco to be the New Trial Hot Spot

With Judge Gilstrap of the Eastern District of Texas finally cancelling his winter trials in the face of surging cases, attention turns to the Western District of Texas, which Judge Alan Albright is going in a different direction. Waco has become the nation’s hottest patent infringement venue, in part due to Judge Albright’s willingness to bring patent cases quickly to trial. Defendants sued in the Waco Division frequently adopt a strategy of moving for an interdivisional transfer to Austin. Judge Albright has been amenable to such motions, but often he retains the case as the trial judge even as he transfers it to Austin. Yesterday he entered a noteworthy order in one such case. The Western District of Texas has continued trials through the end of 2020. However, judges in a particularly division may opt out of that order. The judges in Austin have not opted out. Thus, according to Judge Albright, the Austin Division is “currently closed” and “remains closed...

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“Jury Trials are Innately Human Experiences.”

Judge Rodney Gilstrap of the US District Court for the Eastern District of Texas as capitulated, postponing his upcoming trials until March. His order includes some interesting commentary in the footnotes. Of remote proceedings, Judge Gilstrap writes: This approach, while adequate in a strict sense, allowed the Court to move forward virtually, albeit with regularly unwelcomed losses of audio, video, or both, including unfixable lagtime between audio and video where lips would move. . . lips would stop . . . and sound would follow. The virtual proceedings detracted from the typical administration of justice, depriving the Court of the ability to observe such critical factors as intonation, body-language, attitude, demeanor, and similar vocal and other physical nuance and those quasi-intangibles that normally breathe life and meaning into the written briefing filed on the docket. This approach also unavoidably hampered the Court’s ability to interject questions...

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Content May Soon Run Out

What will we write about when all the courts have closed? We are rapidly on the way to finding out, especially in the federal system. Here’s a summary of recent federal district court orders on jury trials: Eastern District of Arkansas: Civil and criminal jury trials scheduled before January 15, 2021 are continued to a later date. District of Colorado: Civil and criminal jury trials scheduled before January 8, 2021 are continued to a later date. Northern District of Illinois: Civil and criminal jury trials suspended indefinitely. Central District of Illinois: Civil and criminal jury trials suspended and shall be reset for a date after January 25, 2021. Southern District of Illinois: Civil and criminal jury trials set through January 24, 2021 are cancelled and will be reset. Northern District of Indiana: All jury trials scheduled to begin before January 29, 2021, are continued and will be rescheduled by the presiding judge “unless the presiding judge, in their...

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In EDTex, the Fallout Continues

As we’ve covered in several posts below, a trial fell apart in the US District Court for the Eastern District of Texas in Sherman earlier this month, with jurors, attorneys and court staff all contracting COVID-19 (at least 13 people in total) and others now in quarantine. The question now is: What lesson will other judges take from what happened in Judge Amos Mazzant’s courtroom? We may soon find out. Citing Judge Mazzant’s trial and the rising level of cases in Texas and across the country, defendants with December patent infringement trials in Marshall are seeking continuances. Their papers are here and here and also embedded below: These briefs will be useful for any litigants seeking continuances right now.

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When Jurors Want to Quarantine Mid-Trial…

A BigLaw civil jury trial finished yesterday in the US District Court for the Eastern District of Missouri. The first phase was a 12-day trial that began October 1 and concluded on October 22 with a verdict of $21 million in compensatory damages for the plaintiff. A punitive damage phase began—and ended—yesterday. At some point before the punitive phase, the judge excused Juror #1 because of “COVID-19 exposure,” according to a filing by the defendant. Yesterday morning, the defendant moved for a mistrial based on the change of composition of the jury. In the alternative, the defendant sought a mistrial “on the grounds that the Court improperly [dismissed Juror #1] without providing the interested parties the opportunity to participate in the examination of the impact of the juror’s excusal for quarantine for COVID-19.” The judge let the trial go forward, with a plan to take up the motion for a mistrial before the jury deliberated. Opening statements,...

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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...

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Even the Rocket Docket

The US District Court for the Eastern District of Virginia is the fastest federal docket in the country. The court’s motto is “Justice delayed is justice denied.” But, as they say, the virus doesn’t care about your motto. Yesterday evening, the Clerk of Court sent out this email: “All criminal jury trials in the US District Court for the Eastern District of Virginia are temporarily suspended, with criminal jury trials to resume on January 19, 2021, absent further Order from this Court. Such temporary suspension is in response to the significant increase in COVID-19 cases, hospitalizations and percent positivity in our District; the increase in known and suspected COVID-19 exposure of court personnel and court users; and the recent statewide and local community actions increasing restrictions aimed at curbing the spread of COVID-19.”

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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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