California courts are (slowly) returning to civil jury trials

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Courts across the country took different approaches during the pandemic. This article summarizes the state of civil jury trials in a select few key California counties in which Scali Rasmussen practices regularly.

In parts of the U.S., trials continued with a combination of social distancing, barriers, limited attendees and a combination of in-person and remote fact and expert witnesses. In fact, the Minnesota state court trial of former Minneapolis Police Officer Derek Chauvin for the death of George Floyd took place this spring during a period when the coronavirus threat posed more of a danger in Minnesota than in California. Of course, that was a criminal trial and criminal defendants have speedy trial and due process rights that courts rightly prioritize.

During the last eight months, state and federal courts in California have also pressed ahead with trials particularly in the areas of criminal, evictions, juvenile and traffic violations. While these proceedings managed to clear some of a massive litigation backlog, they have been met with controversy. In January and February 2021, four employees of the Los Angeles County Superior Court system died from COVID-19. Though it is unclear how and where these victims were exposed and caught the coronavirus, court employees, judges, litigants and prospective jurors were shaken by the tragedy of these courthouse deaths.

Now, with a third of Californians achieving full vaccination, the courts are re-opening and re-evaluating existing emergency measures and protocols.

In Los Angeles, statutory priority will continue with criminal trials, juvenile and civil preference cases in which the plaintiff is very sick or elderly. This means most civil cases will be continued into later in the year or into 2022. Juror availability remains a challenge, as this spring less than ten percent of prospective jurors responded to juror summonses (pre-pandemic, the County response rate was around 65%.).

Department 1 at the Stanley Mosk Courthouse will serve as the central location for county-wide coordination of all Civil jury trials. “These new coordinated procedures seek to ensure that courthouses, as well as hallways within our courthouses, do not become overcrowded,” Presiding Judge Eric Taylor said. “A Civil courtroom may be next door to a courtroom holding a Criminal trial – and therefore we need to carefully regulate the scheduling of jury trials consistent with social distancing. The Court has a limited number of courtrooms large enough to accommodate jury trials and we need to assess the availability of jurors. Given these complexities, I have designated Department 1 as the central place to make these assessments, allowing the Court to gradually provide Civil attorneys and litigants the access to justice they need to resolve their cases safely and efficiently.”

The Court’s main concern is that courtrooms, as well as hallways within courthouses, do not become overcrowded. Before a case is assigned a courtroom for jury trial, a Mandatory Settlement Conference (MSC) or mediation must have been held within the last 90 days. Department 1 will arrange for an MSC with an available judge or the parties may elect private mediation.

In place of a traditional jury trial, the parties may agree to a jury of fewer than 12 persons, or a bench trial (a trial by judge only) of some or all the issues, which may avoid a jury trial altogether. Witnesses can testify remotely, which will help to reduce the number of people in the courtroom. There is also a special personal jury program in which parties to a case who are willing to waive their right to a jury will be assigned to a Civil trial department for a bench trial within 60 days.

San Diego Superior Court jury trials were suspended throughout most of 2020, though a few trials were held in October and November. Jury duty summonses were mailed to members of the public starting in September 2020. Jury trials were again suspended in December and January; however, the Court resumed jury trials in March 2021. Some criminal trials were delayed because of a lack of jurors: twice 900 people were summoned and around 40 appeared each time.

Like Los Angeles, San Diego uses an oversized courtroom, installed plexiglass dividers for witnesses, video cameras and socially distanced jurors. The judge, attorneys, witnesses, and jurors are required to wear masks. The courtrooms are closed to visitors and trials are “Live Streamed” on YouTube to accommodate public access.

Alameda County has allowed the parties to opt for trials remotely via Zoom by agreement of the parties. All persons who wish to enter any physical court location will not be admitted to the courthouse without a properly worn face covering and must comply with other health screening protocols.

In the Central District of California federal court, criminal trials continue to have top priority, starting with in-custody defendants. With the recent decline in California’s coronavirus infections, jury summonses were issued for federal trials to resume May 10 in Orange County. The court expects federal trials in Los Angeles and Riverside to start back up in June. Jury selection will be highly controlled to occur place in large courtrooms where everyone will distance. Elevator use will be limited; plexiglass will section off each judge, witness and court reporter. Masks will be mandatory, with possible exceptions for testifying witnesses.

While the situation is rapidly changing as the judicial system struggles to clear the backlog, it is likely that for the foreseeable future trials will not occur as previously scheduled before or during the pandemic and it will likely be some time before the backlog is cleared.