(January 20, 2022) - Stratton Horres, Karen Bashor and Taylor Buono of Wilson Elser discuss the COVID-19 pandemic's continuing impact on jury trials and alternatives that can help ease case backlogs.
Omicron has spread like wildfire into all 50 states in less than a month.1 Since the first case of the COVID-19 Omicron variant was detected in the United States on December 1, 2021, it has become the dominant strain of COVID-19 in the country.2 In fact, Omicron is surging so quickly that it may soon overtake courthouses as judicial systems react. So that begs the question: now what?
We already are facing a prolonged period of uncertainty in our legal system, with clogged courts and long-delayed trials after almost two years of dealing with the pandemic. Plaintiffs are frustrated and, in some cases, hurting financially as their day in court keeps slipping further and further away. In some cases, they are resorting to the case-funding industry for high-interest loans that are contingent upon the outcome of the case.3 Things are getting tense and anxiety is at a high level across the country.
To further complicate matters, we've seen an erosion of trust in our institutions in general among the population, leading to social inflation and an increase in nuclear verdicts when cases are tried. After all, jurors represent the population. This article will examine the impact of Omicron on jury trials across the country to date, forecast what we can expect for the foreseeable future and suggest potential solutions.
So far, courts have been slow to react and inconsistent in their approach to the surge. Some are shutting down again and some are moving forward aggressively with jury trials to clear the backlog.
Specifically, a survey of the latest responses to Omicron across the country reveals the wildly inconsistent approaches courts are using to grapple with the Omicron surge:
- In New York, Chief Judge Janet DiFiore announced on January 3, 2022, that the state's courts would continue with in-person proceedings, including jury trials, while maintaining compliance with public-health protocols. Judge DiFiore encouraged judges to hold remote proceedings at their discretion in an effort to balance safety with in-person proceedings.4
- The U.S. District Court for the Southern District of New York has announced no plans to pause trials, nor have other jurisdictions, including courts in Chicago, Houston, Miami and San Francisco.
- On December 30, 2021, the Eighth Judicial District Court in Las Vegas filed a new administrative order reinforcing that trials are not to be postponed or continued given the severe case backlog, though the order includes no mention of the ongoing infection surge.5 However, on January 12, 2022, the court entered a new administrative order, ordering a 30-day pause for trials that are expected to last longer than one calendar week, but moving forward with trials that have a shorter setting.6
On the other end of the spectrum:
- The Los Angeles County Superior Court halted criminal trials until January 19, 2022, and the U.S. District Court for the Central District of California halted all civil and criminal jury trials until January 24, 2022.7
- Several other state and federal courts nationwide similarly are suspending all jury trials in light of the Omicron surge, including all state courts in Maryland; several state courts in Colorado, New Orleans and Indianapolis; and federal courts in Connecticut, Maryland and Massachusetts, to name a few.8
As Omicron has continued its alarming spike, courts are attempting to cope with the related staff shortages and restricted jury pool, all while balancing community health and safety. The result is an uneven and fractured approach across the country, and heightened anxiety among plaintiffs and defendants alike. In any event, one outcome is clear: the traditional jury trial may be changed forever no matter what happens.
The rise of the virtual jury trial
One of the principal efforts courts made to cope with the pandemic was to restrict or end jury trials.9 But for obvious reasons, trials cannot be delayed indefinitely. For various practical and political reasons, we may hear the mantra "justice delayed, is justice denied" chanted more and more often. Thus, we have seen increasing virtual jury trials across the country so that courts could continue to operate, albeit at a decreased pace compared with pre-pandemic schedules.
Virtual jury trials have both positive and negative aspects. While in-person jury trials are the preferred method, virtual jury trials allow the judicial system to go forward in these uncertain times while promoting the safety of all those involved in the trial. Indeed, Seattle-based King County Superior Court, where civil jury trials are presumptively virtual, is contemplating keeping some aspects of the virtual trial if or when we enter a post-pandemic era.10
- Commentators have noted that in the virtual setting, the focus tends to be more on the facts of the case rather than on theatrics that may be seen in the courtroom - probably beneficial to corporate defendants, toward whom jurors tend to hold a bias.
- The virtual jury gets to stay at home, which has positive and negative aspects. On one hand, people are more comfortable in their own homes, and may be more candid during voir dire, and in some cases have a better view of evidence shown on their computer screen rather than across the courtroom. On the other hand, attorneys who have completed virtual trials have complained that the virtual jurors have attention issues, so they need to practice methods that will keep the jurors' attention.
- The virtual trial presents a technological hurdle for all parties involved - the court, lawyers, parties, witnesses and jury. To that end, the more commonplace virtual jury trials become, the more practiced and efficient they will become.
- The virtual trial also presents the problem of missed body language such as facial and body cues seen during voir dire or when someone is testifying on the witness stand. However, when parties are required to wear a mask that hides their facial features - one of the biggest indicators of credibility - the former is preferred.
We expect virtual proceedings are here to stay throughout the pandemic - and in some capacity beyond the pandemic. Virtual proceedings can provide greater availability and access to the courts. While attorneys need to learn and maintain their traditional trial skills, they should be prepared to evolve with more hybrid proceedings in the coming years.
Consider a summary jury trial
Parties may consider participating in a summary jury trial as an alternative resolution method. The summary jury trial, conceived in the mid-1980s, was proposed to encourage settlement. The jury is empaneled and the lawyers present summaries of witness testimony and argument to the jury. The jury will deliberate and return a non-binding verdict.11
While the summary jury trial does not avoid all the concerns raised with virtual jury trials generally, it still is an effective tool to keep cases moving forward in light of the pandemic. With a jury verdict in hand from a condensed case presentation, parties will be able to assess their likely outcome in trial more realistically. The summary jury trial can accelerate the path to a settlement and save significant time and expense in a trial - whether in person or virtual.
Non-jury alternatives - arbitration
Given the severe backlog of cases, even with the advent of the virtual trial to alleviate the pressure, and the mandates to push trials through in various jurisdiction, litigants are going to be delayed in reaching case outcomes for at least the next few years. To avoid that, nonjury alternatives should be considered carefully.
Mediation and arbitration both are faster and more cost-effective methods to resolve disputes, and they can be held virtually to prevent further spread of COVID-19 and its variants. With arbitration, parties won't have to wait nearly as long as they would have to with a typical trial, which relieves the increasing pressure we are seeing on litigants whose cases are stalled in the courts now.
It is no secret that courts across the country already are dealing with a tremendous backlog because of the pandemic. It is therefore important for the entire judicial system that cases keep moving ahead. While the Omicron surge has caused increasing uncertainty across the globe, pausing or halting trials in various jurisdictions as we discussed, it has shown us that one thing is certain: we have no idea when or if things will ever go back to the pre-pandemic "normal."
But technological advancements have given us the remarkable ability to move into the "new normal" and push through the pandemic. While much remains unknown, we have learned one thing: the legal industry has found ways to push through this pandemic. Judges and attorneys can use everything we have learned these past two years to keep moving ahead.
1 Joe Walsh, "Omicron Now Spotted in Every U.S. State As Covid Cases Spike - Here's Where the New Variant Is Most Common," Forbes (Dec. 22, 2021), https://bit.ly/3KsEAXG.
2 Covid Data Tracker: Variant Proportions, CDC, https://bit.ly/33qMC2R (last visited Jan. 19, 2022).
3 Victoria McKenzie, "Plaintiffs Attys. in Limbo, With Jury Trials 'Impossible' In NY," Law360 (Dec. 15, 2021), https://bit.ly/3tENv2r.
4 Message from Chief Judge Janet DeFiore, (Jan. 3, 2022), https://bit.ly/3FHlt8D.
5 In re Jury Trial Settings, Continuances, Calendar Call and Civil Reassignment Calendar, ADKT 0555, Dec. 30, 2021 (https://bit.ly/3Ibfqem).
6 In the Administrative Matter of Pausing Jury Trials That Are Expected to Take Longer Than a Calendar Week in Response to Covid-19, Administrative Order 22:02, Jan. 12, 2022 (https://bit.ly/32hIXnm).
7 Presiding Judge Eric C. Taylor Issues General Order to Delay Criminal Trials for Two Weeks as Los Angeles County Experiences Holiday Surge From Delta and Omicron Variants, Los Angeles Superior Court (Jan. 4, 2022), https://bit.ly/33qWOII; Temporary Suspension of Jury Trials, U.S. District Court for the Central District of California (Jan. 3, 2022), https://bit.ly/33wYDUk.
8 Interim Administrative Order of December 27, 2021 Restricting Statewide Judiciary Operations in Light of the Omicron Variant of the COVID-19 Emergency, Dec. 27, 2021 (https://bit.ly/3tWYapt); Wilson Beese, Many Colorado Courts Suspend Jury Trials Due to COVID, 9News (Jan. 4, 2022), https://bit.ly/33wYXCw; Covid-19 Order 2021 - January 4, 2022, New Orleans Civil District Court (Jan. 4, 2022), https://bit.ly/3GM3Rd8; In re: Court Operations Under the Exigent Circumstances Created by Covid-19, U.S. District Court District of Connecticut (Jan. 3, 2022), https://bit.ly/3fDJ2oe; Dan Morse, Rising Covid Cases - Once Again - Halt Jury Trials, Wash. Post (Jan. 7, 2022), https://wapo.st/3KpXONA; USDC-MA Jury Trial Update, U.S. District Court for the District of Massachusetts (Jan. 5, 2022), https://bit.ly/3GEmGit.
9 Coronavirus and the Courts, Nat. Center for State Courts, https://bit.ly/3qG60Se (last visited Jan. 19, 2022).
10 King County Superior Court, Civil Dept., All Civil Motions, https://bit.ly/3FJnTUj; Matt Markovich, King County Court Shifts to Virtual Trials, Potentially Changing Future of Courtrooms, KOMO News (March 3, 2021), https://bit.ly/3tLwlA6.
11 Judge Richard Posner, Summary Jury Trial and ADR, 53 Univ. Chicago L. Rev. 366 (1986) (https://bit.ly/3FH453Z).
Originally published in Westlaw Today, January 20, 2022
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