On Thursday, May 7, the American Board of Trial Advocates sponsored a discussion with the presiding judges from five Bay Area counties: San Francisco, San Mateo, Contra Costa, Alameda, and Santa Clara. The panel addressed the current state of jury trials in the Bay Area given the ongoing COVID-19 pandemic and related shelter-in-place orders.
Here are a few highlights:
1. Key Takeaway: Civil cases, with the exception of unlawful detainer actions, likely will not go to trial before September 1, 2020 (if then). For example, in Santa Clara, all civil trials through July 30 have been vacated. When trials do resume, criminal cases will have priority, followed by unlawful detainer matters, which have priority in California and are entitled to a jury trial. Judges expect a flood of such cases, for both residential and commercial properties, when the current bar on new filings is lifted (90 days after the chief justice lifts the current stay). Thus, general litigation matters will have to wait until the backlog of criminal and unlawful detainer cases are resolved.
2. The courts are aware of the backlog in hearings and trials and are looking for new ways to expedite resolution of disputes. Remote settlement conferences will be available soon in the five Bay Area counties. Also, all of the judges stressed that counsel should try to resolve discovery disputes informally by calling the court and requesting a telephonic conference (much like discovery disputes before federal court magistrates). Santa Clara is doubling the time for hearing law and motion matters.
3. Some of the courts will be experimenting with virtual bench trials later this month. This concept is challenging because judges and staff have not been trained on remote technology and in many cases, do not have the hardware necessary for such hearings, including cameras built-in to their computers. San Mateo is preparing for bench trials via Zoom video; Alameda is preparing for trial using Blue Jeans, another mobile video conferencing app. It is unclear whether parties will have the right to opt out of such trials.
4. The courts are considering the logistics of what a jury trial will look like when they return. They face many challenges related to social distancing. Everyone (including judges) will likely have to wear a mask. There will be limits on how many people can use elevators. Protocols regarding restrooms and cafeterias will need to be established. Glass partitions have been ordered for court employees who have contact with lawyers or the public.
5. Voir dire as we know it will change considerably. Courts may try to conduct more voir dire remotely, including through the use of juror questionnaires and hardship forms to potential jurors. Based on potential jurors’ responses, the Court and counsel can reduce the number of jurors who must come to the courtroom. Once jurors appear for jury duty, we will likely have much smaller panels (perhaps 20) called into a courtroom to allow for social distancing. Once that panel is exhausted, the court can request 20 more jurors. All of the judges acknowledge that this will be challenging. Voir dire will take longer and we will all have to be more patient with the new process.
6. Judges may ask parties to stipulate to trials with eight jurors instead of 12. This would significantly reduce the number of jurors needed for jury selection and expedite the process.
7. Judges are concerned that many jurors will be afraid to come to court for jury duty, especially older jurors, who are more vulnerable to the coronavirus. In addition, given the number of people who have been laid off, there is a concern that more potential jurors will seek hardship (because they will not have an employer who will pay for jury duty or may have a part-time job that they need to pay their living expenses).
8. All hearings are currently held via court call. Courts and staff are becoming more comfortable resolving matters remotely. Judges caution against using cell phones and prefer land lines. They also reminded lawyers to make such calls from a quiet and distraction-free environment.
9.It is very important to check local rules, as they are constantly changing. For example, in San Mateo County, there is a new local rule that all depositions are to be held remotely, unless good cause is shown why that cannot be done.
10. Finally, the judges need our help. They are open to new ideas and suggestions. Cooperation among counsel will be critical in moving forward. We all need to be flexible. Safety will be the top priority.