In March 2021, the Philadelphia Court of Common Pleas (“PCCP”) released its Protocols and Guidelines for conducting in-person civil jury trials during the COVID-19 pandemic (the “Protocols”). To curb the spread of COVID-19, the Protocols outline several precautions, including mask requirements, enforced social distancing, reduced capacity, strategically placed Plexiglass, and the use of streaming technology. Now, over two months later, more Americans are fully vaccinated and the Centers for Disease Control and Prevention (“CDC”) recently stated that fully vaccinated individuals may forgo wearing masks indoors and outdoors. However, the Protocols currently remain intact. While the Commonwealth of Pennsylvania often has stated that it would follow the CDC’s most recent masking guidelines, Philadelphia has often been more restrictive than the rest of the state. Regardless, it remains unclear what impact the CDC’s guidelines will have on future civil jury trials in the PCCP. Therefore, when preparing for trial in the PCCP, attorneys must familiarize themselves with the Protocols. Below are highlights from the Protocols which attorneys should consider when preparing for trial in the PCCP.
The Protocols require that all trial participants “must wear a face mask [at all times] even if they are vaccinated.” (Emphasis added.) This includes when counsel is examining a witness and similarly when a witness is testifying. The only exception to this rule is when a trial participant is actively drinking from a water bottle. The PCCP also encourages (but does not require) that trial participants wear two masks, such as a combination of a surgical mask and a cloth face mask, which the PCCP considers to “approximate a single N95 mask that filters more than 95% of particles carrying the COVID-19 virus.” All face masks must be CDC compliant and worn over the mouth and nose. In addition, the Protocols state that while they do not replace a face mask, participants may also wear plastic face shields over their face masks. Given the mask requirement, attorneys should anticipate that they will be unable to analyze certain facial cues from jurors, witnesses, judges or opposing counsel that may have been obvious in a pre-pandemic world or via a Zoom platform. Similarly, attorneys will also not be able to take advantage of some of their own facial expressions when examining witnesses, speaking to jurors or addressing the Court. Attorneys should also remember that they will need to speak up, as the face mask coverings often muffle volume.
To increase ventilation, courtrooms will leave a window partially open for the duration of the trial. The PCCP encourages trial participants to wear layers, especially during the colder months. As the weather gets warmer, this will be less of a concern. However, should these guidelines remain in place (or be reinstituted) in the fall of 2021 and beyond, attorneys should dress appropriately and remind their witnesses to do the same.
Counsel are to remain seated during the entire trial, except when giving opening and closing arguments at a podium, with permission from the presiding judge. Of course, this means counsel must remain seated when examining witnesses. Counsel must also use all evidence via a television projection. To the extent that the presiding judge allows counsel to use paper documents as exhibits, every trial participant in the room must be given their own individual copy. Accordingly, counsel should prepare the adequate number of copies.
Sidebar conversations with the judge are “strongly discouraged during trial” and the Protocols expect counsel to raise evidentiary issues “before the trial commences, at recess, or after trial adjourns for the day.” If a sidebar conversation is absolutely necessary during a witness examination, recess will be announced and the jury must leave the courtroom. All sidebar conversations must be socially distanced. The no sidebar requirement means that counsel should think carefully about certain issues before the trial commences and take diligent notes to remind themselves to raise issues later during recess or after adjournment.
Before going to trial in the PCCP, attorneys should practice and prepare witnesses using the PCCP guidelines to minimize any surprises. Also, failure to comply with the guidelines, even inadvertently, may result in sanctions. The Protocols suggest that attorneys should coordinate to see the trial courtroom beforehand by emailing the First Judicial District of Pennsylvania’s director of complex litigation, Stanley Thompson, at Stanley.Thompson@courts.phila.gov or request to see the room after jury selection. While the Protocols are new and potentially daunting, attorneys can take protective steps to make sure they perform efficiently and effectively for their clients while simultaneously keeping everyone healthy and safe.