Since the pandemic first closed many courts, one of the most significant adjustments made by federal courts has involved the use of electronic communications. Under provisions of the CARES Act, the COVID-19 relief law passed in March 2020, federal courts began conducting routine procedural hearings, such as first appearances for criminal defendants, by telephone and video hookups.
As the coronavirus dragged on, a small number of courts have adapted electronic proceedings to meet more challenging situations. Numerous courts by the close of 2020 conducted virtual bench trials, which did not require a jury. And just recently, the Western District of Washington began holding all-virtual jury trials in civil lawsuits. At least four other federal courts have scheduled virtual civil jury trials, with jurors serving from home. These include the Middle District of Florida, District of Minnesota, District of Kansas, and District of Rhode Island. Two of those case settled before trial and the other two proceeded. These courts determined that civil jury cases would stand up to any appeals, and they found that it was easier to assemble diverse juries. For some of these diverse jurors, not having to travel a hundred miles or more to a federal courthouse was a major advantage.
Seyfarth litigators were no strangers to remote proceedings in 2020, with our lawyers conducting several remote bench trials, in person bench trials, remote arbitrations, and mediations across the platform last year. Barring the occasional crying baby or barking dog, the feedback was positive, with a general consensus that documentary evidence came in smoothly and witness testimony was clear and captured into the record.
Coming into 2021, live trials are happening, mostly if not exclusively in many courts in criminal cases that have priority. Most civil jury trials will not be back online until at least summer. As a result, some courts are being more aggressive in pushing the parties toward mediation (and often judges are scheduling their own settlement conferences) to urge resolution as a practical approach to resolving current backlogs based on the number of civil cases awaiting trial.
Currently, where there have been live trials, numbers are limited in the courtroom and only larger courtrooms are suitable. Some judges are exploring other possible venues for trials including military bases and community colleges. Under the recent Biden executive order covering federal buildings, everyone in a federal court must be masked, except the witness may remove his/her mask after entering the witness box (surrounded by Plexiglass). The witness typically cleans the witness stand before departing. Plexiglass separates the judge, counsel, witnesses and any jurors. Members of the trial team sit distanced so that if one becomes ill/quarantined, the other is not a close contact and trial can proceed. In many courts, sidebars, conferences between counsel, and attorney/client conferences take place over a single-channel microphone system. Remote hearings are working well for more routine conferences. They are especially effective for defendants in prison who are subject to an onerous quarantine after attending an in-person hearing. Remote hearings also save travel time and are efficient. Based on recent surveys, routine hearings conducted remotely appear to be here to stay, especially if counsel is not local.
According to a recent survey of federal judges, the longterm role of virtual evidentiary proceedings and nonroutine matters remains unclear. While virtual trials in civil cases remain a rarity, a recent seminar on conducting virtual trials hosted by the Western District of Washington attracted more than 900 participants from more than 60 district courts. In addition, under the CARES Act, the Judiciary will end most electronic proceedings once the pandemic emergency is declared over. Until then, telephone and virtual hookups will play an important role in moving cases forward. For example, Chief Judge John R. Tunheim, of the District of Minnesota, said virtual civil trials are likely to be needed even after more people receive vaccinations. That is because anti-COVID-19 measures, such as plexiglass barriers and social distancing, will greatly reduce courtroom capacity, and criminal cases must be tried in person. He noted that they only have one courtroom in Minneapolis and one in St. Paul for trials, "so the ability to do civil trials virtually while we catch up on our criminal trial backlog will be very helpful."
And despite inevitable hiccups, judges agreed that virtual strategies have preserved the essentials of justice during the nation's worst health crisis in a century. Several judges noted that despite the issues that delayed many criminal jury trials because those could not be conducted, civil proceedings up to and including trials could progress in various ways resulting in a far lesser backlog than anticipated. Thus, even while we await a return to pre-pandemic operations in many courts, we should expect civil cases will continue to move forward expeditiously if the parties agree to conduct them remotely or try them to the bench.
Originally Published 31 March, 2021
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