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.
Filters Off, Please
Proceeding by Zoom may not be harmless. If you’ve not seen this video, watch it:
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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.
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.
Lawyers and Judges Battle over COVID-19
Requests for COVID-19-related trial delays can lead to strife between lawyers and judges—and crazy things can happen. We see this most recently in San Bernadino, California, where a civil jury trial has been interrupted in the middle of jury selection. The Sun has the story, which we paraphrase:
An attorney who allegedly tested positive for COVID-19 amid San Bernardino County’s largest civil trial since the start of the pandemic claims court personnel failed to inform dozens of potential jurors that he may have inadvertently exposed them to the virus.
The attorney, who represents the defendants, made the claim in a motion, prompting the judge to halt jury selection until Feb. 15.
“The court refused to inform potential jurors that they had been exposed to someone contagious with COVID-19,” the Nov. 10 motion states. “Far from contact tracing, the court actually withheld information from those who may have been exposed.”
Plaintiff’s counsel, however, says that no jurors have been diagnosed with COVID-19, said an attorney representing the plaintiff. According to plaintiff’s counsel, the judge has been meticulous in following Centers for Disease Control guidelines to guard against the virus, requiring those in the courtroom to practice social distancing and wear protective face covers.
Defendant’s in-house counsel said: “The risks are just too high right now, with the dramatic increases in cases, and the lack of intensive care unit space in hospitals. The numbers are astonishing, and the judge made the right call in pausing this trial.”
The defendant has made repeated legal attempts to delay the trial due to COVID-19 concerns.
Last month, after the judge ordered jury selection to proceed, the defendants filed a petition with the California Court of Appeals seeking an immediate stay, expressing fear the trial could result in a virus super-spreader event. That petition and a subsequent appeal to the California Supreme Court were both denied.
The defendants’ reiterated their concerns in a motion last week, argument that Southern California’s COVID-19 infection rate is even more dire than it was a month ago. “Now is not the time to bring together a roomful of strangers for a non-essential civil trial,” the motion asserts.
The motion also states that the court failed to adhere to COVID-19 protocols following his own virus diagnosis.
On Nov. 18, other defense attorneys informed the judge that lead counsel, who was not present, had a headache and was experiencing chills. They added that lead counsel had been in the courtroom with dozens of jurors, lawyers and court staff over the course of several days just before he became ill.
Lead counsel had sat a little more than 6 feet apart from 85 jurors who took turns speaking into a microphone, according to the motion.
Upon learning of lead counsel’s symptoms, the judge said she hoped he felt better and wasn’t infected with COVID-19 before moving on to other trial-related matters, says the motion.
“The court then immediately proceeded to discussion of deposition designations without any consideration of whether it was appropriate for lawyers who had been in close contact with [the allegedly infected lawyer] to continue to appear in the courtroom alongside jurors and court staff, or whether the jurors who had been exposed to [him] just days prior should be notified of their risk”, the motion states.
Defendants’ lead counsel informed the court during a telephonic hearing on Nov. 25 that he had tested positive for COVID-19. However, that revelation was met with skepticism from plaintiff’s attorneys, who suggested that [defendant’s lead counsel] was lying about his COVID-19 diagnosis to delay the trial and also pressed for a copy of his test results, the motion says.
Defendant’s in-house lawyer said it is her understanding that the judge didn’t tell jurors they were exposed because she thought a sufficient number of days had passed from when they were in the presence of her infected colleague.
Other possible COVID-19 issues also surfaced during the trial.
On December 3, a juror came in person to the jury assembly room to report she had been exposed to COVID-19 and could be a carrier, according to the motion. Then, on December 7, a potential juror reportedly was coughing, sneezing and wheezing in the courtroom where he spent about 4 1/2 hours during jury selection.
“Jurors who had shared the courtroom with the possibly infectious juror the preceding day were not informed of the potential risk, and attorneys and court staff—who now themselves might be carriers of COVID-19—sat alongside the new day’s fresh batch of jurors,” according to the motion. “The failure to adhere to basic COVID-19 safety protocols during the past several weeks raises serious public health concerns.”
It was unclear regarding whether the individuals in the two incidents were diagnosed with COVID-19.
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 COVID-19 pandemic (and its particular impact on civil trial dates), a stay may ultimately not have any meaningful impact on the trial schedule in this case.’ The undersigned has conducted one civil trial and one criminal trial since the COVID-19 pandemic began. Given the success of those trials and the extensive protocols the courthouse has in place, the undersigned intends to proceed with all hearings and trials as scheduled. As a result, this case will proceed to trial in September 2021 as contemplated by the Third Amended Scheduling Order….”
Trial by Webex, but Not Zoom?
Litigation by Zoom is not novel at this point. Depositions by Zoom, motions hearings by Zoom, bench trials by Zoom—it’s all become commonplace. While federal civil jury trials by Zoom have been rare, there have been many in various state courts. And while we know from our daily lives that other videoconferencing services are available (Teams, Webex, GoToMeeting, Collaborate), Zoom predominates in pandemic litigation.
It was curious, then, to see a ruling from the US Court of Federal Claims. Confronted with a routine discovery motion for leave to take depositions remotely pursuant to Federal Rule of Civil Procedure 30(b)(4), which requires such leave in the absence of a stipulation, Judge Charles Lettow wrote: “In the circumstances at hand, the court GRANTS leave for depositions to be taken either telephonically or by Webex. Zoom should not be used, absent proof that such use would be secure.”
It seems that the parties did not direct the court to Zoomgov.com:
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 disease measures the courthouse pledged to use to gauge whether the jury trials should continue.” But jury selection of the second pandemic jury trial is now underway.
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.