SubscribeDelaware has one of the most active federal civil trial dockets in the country. On Monday, it issued this notice:
In short, Delaware is back.
Reopening Procedures
“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 jury.
The court grants the motion to continue the trial to October 12, 2021, and all other dates accordingly. The court must candidly advise the parties that there is no assurance that the trial will proceed on that date for the reasons outlined above.
The court regrets the present circumstances and ask for the parties’ patience.
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.
Filters Off, Please
Proceeding by Zoom may not be harmless. If you’ve not seen this video, watch it:
McDermott’s Litigation team can help you avoid mistakes like these!
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.”
Looks Like We Made It
The Trump administration departs. The Biden administration arrives. But for the courts, the inauguration is no magic shot in the arm (as they say).
Appeals courts have been reluctant to second-guess trial courts’ approaches to COVID-19, at least explicitly. But the Texas Supreme Court has taken a different approach this week. According to Texas Lawyer:
[The Texas Supreme Court] has hit the brakes on an in-person jury trial in Houston this week, even though justices last year denied similar requests to continue trials as COVID-19 spread across the Lone Star State. Yet this time, as infection rates—reaching their highest point ever—have begun overrunning intensive care units in some Texas cities, the justices have issued an about-face by granting an emergency motion to stay.
New York litigators from Davis Polk & Wardell first asked for a trial continuance that was denied by Judge Mike Englehart. Next, they lost a bid from Houston’s 14th Court of Appeals to stop the two-week trial that was supposed to begin Monday.
Before the Texas Supreme Court, they argued that their lead trial counsel recently lost his father-in-law to COVID-19. The death “makes the risks associated with this trial much more onerous for counsel and his family.” The trial team members’ families include an elderly cancer survivor and immunocompromised relatives who might be exposed when the lawyers return from Houston. Also, a “key witness” currently “has the coronavirus and can’t testify.” Persistence paid.
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.
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 days. We hope it is not the beginning of a trend.
