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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.”




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:

The Jury Returns - Trial by Webex but Not Zoom - Zoom for Government




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, evidence, closing arguments and jury charge were all accomplished over a five-hour period. Then the court denied the motion for a mistrial—but it looks like an appellate court will never review this one. After deliberating for just over an hour, the jury returned with a verdict of zero punitive damages.




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.




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.”




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.”




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 contact with Court employees throughout Potter Stewart, particularly the court security officers (CSOs).

As a consequence, “in order to ensure the health and safety of the judicial officers, Court and agency staff, and to prevent possible exposure to the COVID-19 virus, and the spread of such disease,” the entire courthouse was ordered closed until November 16, by order of Chief Judge Algenon Marbley. All employees known to have had contact with the DUSM, including CSOs, were ordered to self-quarantine and “get tested for COVID-19.” All criminal, civil and grand jury sessions were canceled.

Obviously, an event like this in the middle of an ongoing jury trial would be disruptive, to say the least. Now add in the uncertainty factor: Today Judge Marbley issued General Order 20-33, which rescinds the prior order entirely. The courthouse is reopened. Canceled hearings are apparently uncanceled. And it seems the self-quarantine and testing directions are rescinded as well.




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.”




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

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