Restarting Jury Trials: For Lawyers and Judges, the Closer You Look, the Harder It Gets

As attorneys begin reckoning with the impact of the COVID-19 pandemic on the legal profession, one question is on everyone’s mind: When will courts be able to hold jury trials again?

In Pennsylvania it’s a question court leaders have begun to grapple with in recent weeks, but it seems to grow more complicated the more closely it is examined.

“There are all these issues that the more you think about it and the more you talk about it, the more problems you start coming up with that maybe you hadn’t anticipated beforehand,” said Lackawanna County Court of Common Pleas Judge Terrence R. Nealon.

Nealon is leading a working group of judges from across Pennsylvania who have been tasked by the Administrative Office of Pennsylvania Courts to help develop guidance on the issues courts are likely to confront as they begin resuming jury trials.

The consensus is Pennsylvania is at least months away from bringing jurors back. Earlier this month, several jurisdictions announced that all jury trials would be postponed until at least early September. Most lawyers, however, said they believe it is unlikely any civil trials will be held for the rest of the year.

“September is probably an optimistic date. I don’t see it,” Kenneth Rothweiler of Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck said. “The more likely outcome is not through 2020.”

Dechert’s Sozi Tulante agreed, and added that, even when juries are able to get back into the courthouses, things will look very different.

“The jury trial we imagine in our heads is not going to return until there is a vaccine, until people have some sense of comfort,” he said.

Court leaders, however, are beginning to delve into the specifics of these issues, and, despite a constantly changing state of affairs, are working balance the constitutional right to a trial with the need for public safety.

Behind the Scenes

In Philadelphia, although jury trials are officially suspended until Sept. 8, the system is at the cusp of what President Judge Idee Fox refers to a “soft open,” where operations that focused almost entirely on bare-bones emergency protocols are starting to loosen up. Some nonessential employees, Fox said, are beginning to come to the court facilities back on a staggered basis, which helps give the leadership a concrete sense of what it will take to bring people back to the building while maintaining social distancing requirements.

Each of the First Judicial District’s buildings, Fox said, has its own committee working on the logistics for that building, and the court is planning to begin holding some criminal proceedings, like status conferences, guilty pleas and bail hearings, by Zoom beginning in June.

“We’re really in a growing phase right now to try to expand what we can do,” Fox said.

When it came to the decision to officially suspend jury trials another three months, Fox said the court arrived at the date with a lot of input from Administrative Judge Jacqueline Allen, who, Fox said, was working backward to estimate how long it might take to address all the known unknowns.

“We believe it is imperative to set a date, rather than leave that up in the open,” Fox said, noting, however, that it too is tentative. “All of this depends on how the COVID-19 virus proceeds.”

At a statewide level, the AOPC convened a working group of 12 judges from across the state, with Nealon as the chair. The group, which includes Judge Sheila Woods-Skipper in Philadelphia, Judge Christine Ward in Allegheny, Judge Carolyn Carluccio in Montgomery and Judge Richard Lewis in Dauphin, has been meeting weekly through Zoom with the members breaking into various committees to focus on the different challenges.

According to Nealon, the group has been working with the National Center for State Courts to learn about what other states have been doing, and has been in regular contact with a member of the executive branch’s legal counsel, who is affiliated with the state Department of Health. The group, Nealon said, is planning to have a report to the state Supreme Court in June with recommendations.

In the U.S. District Court for the Eastern District of Pennsylvania, Judge Jeffrey Schmehl is heading the district’s jury committee. Other committees, he said, have been formed to look at the needs for each building across the nine-county district, and currently they are awaiting more medical advice from the Administrative Office of U.S. Courts.

“Our country’s premised on the right to a jury trial. How do we safely fairly and competently conduct one?” Schmehl said.

Regardless of what kind of case or what side of it attorneys are on, all agree that without jury trials, the entire system will have difficulty functioning.

“What gets cases settled is the threat of a jury trial. Jury trials facilitate settlements,” Rothweiler, who focuses on civil litigation, said.

The same mentality goes for plea deals, so just getting cases firmly scheduled could resolve at least some of the backlog court systems now face.

In the meantime, attorneys are doing their best to keep moving their cases through discovery, and getting them as ready for trial as possible.

“I would say, universally both the plaintiffs bar and defense bar are frustrated,” Rothweiler said. “We’re all trial lawyers, we’re used to moving cases into discovery and then to trial.”