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Reopening, Take 2?

By McDermott Will & Emery on Jan 26, 2021
Posted In Florida, Reopening Procedures, State Courts

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.”

Competing Approaches in South Carolina

By McDermott Will & Emery on Dec 7, 2020
Posted In Federal Courts, Reopening Procedures, South Carolina, State Courts

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?

By McDermott Will & Emery on Dec 4, 2020
Posted In Court Technology, Federal Courts, Reopening Procedures, State Courts

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:

Dark Winter for Trial Lawyers

By McDermott Will & Emery on Nov 18, 2020
Posted In Alaska, Delaware, Federal Courts, Indiana, New Jersey, New York, Pennsylvania, Reopening Procedures, State Courts, Tennessee, Texas, Vermont

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.

Even the Rocket Docket

By McDermott Will & Emery on Nov 17, 2020
Posted In Federal Courts, Reopening Procedures, Virginia

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.”

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

By McDermott Will & Emery on Nov 16, 2020
Posted In Federal Courts, Illinois, Reopening Procedures

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

By McDermott Will & Emery on Nov 11, 2020
Posted In Federal Courts, Iowa, New Hampshire, Reopening Procedures, South Carolina, State Courts

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

By McDermott Will & Emery on Nov 9, 2020
Posted In Federal Courts, Ohio, Reopening Procedures

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

By McDermott Will & Emery on Nov 7, 2020
Posted In Colorado, Federal Courts, Reopening Procedures

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.”

All Eyes on Georgia (Courts)

By McDermott Will & Emery on Nov 4, 2020
Posted In Georgia, Reopening Procedures, State Courts

We’re talking about jury trials, of course. (Were you thinking of something else this morning?) Even as coronavirus cases spike, with 2,755 cases and 43 deaths yesterday, with positivity rates around 20%, Georgia is restarting state court jury trials. Some courts can’t accommodate social distancing, so trials will be held in civic centers, sports arenas, school gymnasiums or lodges associated with groups such as the Veterans of Foreign Wars, according to Law.com. Criminal trials will take priority. In those counties that have announced specific procedures for conducting trials, if a juror tests positive in the middle of a trial, the show will go on.

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