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Virtual Courtrooms in Miami

This morning we received this notice from state court in Miami (the Eleventh Judicial Circuit) where we have a case pending: Coronavirus/COVID-19: Courthouses are closed for in-person hearings and trials based on public health advisories at the direction of the Florida Supreme Court. The Eleventh Judicial Circuit wants you safe at home.   We are establishing Virtual Courtrooms. Court hearings in your case that we can hold remotely via video or phone conference will be held on the Zoom platform, which is free to you. You will receive an email from the Court if we are proceeding with your hearing with the information you need to connect.

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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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The Jury Returns to D. Mass.

The US District Court for the District of Massachusetts held a Zoom update yesterday for the members of the D. Mass. bar. The chief judge and three other district judges reported about the success of four single-defendant criminal trials that have been held since trials began in this district. While the judges felt the trials had been successful, they were clear that the protocols in place to prevent the spread of COVID-19 make jury trials much more difficult than pre-pandemic. One judge shared a story about a juror standing up on the second day of trial and announcing she had to vomit (which she then did). But the show went on: The other jurors showed up the next morning, the sick juror was excused but tested negative for COVID-19 and the jurors ultimately deliberated over the course of three days. The judges urged lawyers involved in civil cases to advise their clients that they should consider bench trials or Zoom trials, or wait until conditions change to...

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Trials Underway in San Francisco and Cleveland Courts

Most of the federal trials that have actually been held during the pandemic have been in rural locales. But yesterday, Judge William Orrick in San Francisco launched an in-person criminal jury trial in a mail-bombing case. Jury selection began with a SurveyMonkey questionnaire. The courtroom is closed to the public but the audio is being broadcast over Zoom to all interested observers. Meanwhile, Cleveland saw its first pandemic jury trial end Friday after five days with the acquittal of an accused murderer. The state court trial was held in a large conference room in the county-owned Global Center for Health Innovation. Everyone was masked except for testifying witnesses. Jurors sat six feet apart behind a plexiglass shield and with shields between them.

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New Jersey Appeals Court Stops First Pandemic Jury Trial

Earlier this week we told you that a New Jersey court was conducting voir dire partially by Zoom. The defendant objected that the process is unconstitutional because it yields a jury pool that is not a cross-section of the community. Now the court of appeals has halted the trial while it considers the issue. This result may be cited in criminal and civil jury trials nationwide, in both federal and state court. The issue of forming a representative jury pool in the midst of the pandemic has been worrying the judiciary for many months. Notably, the New Jersey Law Journal article on this case bears the headline “Appeals Court Halts State’s 1st Post-COVID-19 Jury Trial After Jury Selection Challenged.” But of course, we are not post-COVID-19. We are mid-COVID-19.  

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New Jersey’s Zoom Jury Selection Process Is Challenged

New Jersey’s first jury trial of the pandemic is underway in Bergen County. It’s a criminal trial, with the defendant accused of trying to set fire to his ex-wife’s home. Voir dire began last week, beginning with Zoom-based voir dire. Now the defendant has moved to suspend the trial until alleged constitutional deficiencies can be corrected or until “normal” jury selection can resume. The defendant raises issues that the judiciary has been grappling with since the pandemic began, writing: Bergen County’s implementation of electronic notifications, electronic jury questionnaire submissions, and Zoom-based voir dire has limited an entire socioeconomic group’s participation in jury service. Those who cannot afford a computer are eliminated from jury service because they cannot submit questionnaires. Others who cannot afford internet service are prevented from appearing at the initial stages of jury selection by Zoom. Furthermore, those who lost their jobs during...

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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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