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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...

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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...

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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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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...

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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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Federal Court “Open and Accessible” in Chicago with Trials Suspended Indefinitely

Illinois presently has the largest number of daily new cases of COVID-19. On Friday, the US District Court for the Northern District of Illinois issued a new general order: All civil and criminal jury trials are suspended indefinitely. All civil hearings will be conducted remotely. No motions will be noticed for presentment. (A feature of Chicago federal practice pre-pandemic was that every motion was presented in person to a judge before full briefing was ordered.) All public gatherings are suspended. Other than that, the Order states, “this Court remains open and accessible.”

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Iowa, New Hampshire, South Carolina: Court Closings across Jurisdictions

The headlines about COVID-19 hospitalizations are bleak, and flowing from them come a stream of court orders pushing off trials. The Iowa Supreme Court has put a hold on all jury trials until February 1, 2021—the latest we’ve seen. From Iowa, naturally, we move to New Hampshire, where a trial scheduled to begin Thursday was canceled in light of rising infection rates and “limited air circulation” in the courthouse. Then on to South Carolina, where Charleston saw its first jury trial since February—a one-day criminal trial conducted yesterday. Plexiglass dividers were installed, temperatures were taken and masks were required, including for the judge. But this occurred against the background of criminal defense lawyer Chris Adams telling ABC-4 News in Charleston: “If we’re forcing people into an enclosed room, somebody’s going to get this virus and die.”

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The Challenges of Courthouse Operations in a Pandemic

When chief judges take questions from their local bars about reopening procedures, one question that frequently comes up is: What happens if a juror tests positive in the midst of a trial? The risk, however, is not just limited to jurors, as we saw last week in the US District Court for the Southern District of Ohio, in Cincinnati. On Thursday, that court issued General Order 20-32. The order reported that a deputy US marshal (DUSM) stationed at the Potter Stewart Courthouse, who last reported for duty on October 30, became symptomatic on November 1 and was diagnosed as positive on November 5. The order continued: It is understood that while the DUSM may have visited multiple public areas in Potter Stewart during the week of October 26, 2020, through October 30, 2020, including all floors, the CSO station, the guard shack and the snack bar, those areas have since been cleared and disinfected. The DUSM, however, while infected by asymptomatic, came into...

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The District of Colorado Suspends Jury Trials

Last week, Chief Judge Philip Brimer of the US District Court for the District of Colorado continued all criminal and civil jury trials scheduled to commence before January 8, 2021. Judge Brimer also suspended all grand jury proceedings and canceled all public gatherings in the courthouse. The order reported that “key indicators from the Colorado Department of Public Health & Environment, including positivity rates, the number of hospitalizations and cumulative incidences per 100,000 people, demonstrate a significant increase in the rate of COVID-19 infections in many parts of the District of Colorado.”

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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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