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.
jury trial
“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.
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.
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.
