Trials and Litigation in the Era of COVID-19 (II)
This series explores various issues relating to the reopening of Courts in New Jersey in the shadow of COVID-19, including the intersection of safety measures and the rights of litigants.
How the Courts Are Working to Protect Court Staff, Attorneys, Litigants, Jurors, and the Public as In-Person Trials Resume
As we move forward through the effects of the COVID-19 pandemic, our Courts have slowly begun the process of restarting jury trials beginning in Atlantic, Bergen, Mercer, Passaic, and Cumberland counties. As we gauge the success of these jury trials, more in-person trials (jury and bench) are sure to follow across the state. However, this will undoubtedly be a harsh winter due to the pandemic. This sentiment was echoed by Governor Murphy who, on October 28, 2020, issued a new executive order setting forth strict safety standards for employees/employers throughout the state. (1)
Given the ongoing danger of COVID-19, it is worth highlighting the safety protocols in place to protect litigants, attorneys, jurors, and court staff during trials. First, trials will have both virtual and in-person elements. As jury selection naturally involves the gathering of larger groups, much of it will be conducted virtually (2) All jurors (once selected) and trial participants will have specific routes to the designated courtroom, be required to wear masks, receive daily COVID-19 screening text messages, report to the courthouse on a staggered schedule, and undergo point-of-entry screenings. Additionally, jurors will each receive certain materials including hand sanitizer. While in the courtroom, social distancing will be practiced and larger spaces (such as another courtroom or assembly space) will be utilized for jury deliberation.
Additionally, the court house is a public place and most jury trials are traditionally open to the public as an important way to ensure transparency and confidence in our court system. To further these goals while limiting the number of people in the courtroom itself, the first socially distanced trials are set to be live streamed for public viewing. For future trials, livestreams online, limited access to the courtroom, or video from another area in the courthouse are available options for members of the public who wish to see the trials.
These necessary safety measures will lead to a shift in how attorneys are able to present their cases and how the courtroom is set up. Given that the jurors will be spread at least six feet apart, likely in the courtroom’s gallery instead of the jury box, counsel tables may have to be moved and Plexiglas shields will be commonplace. It will be more difficult for attorney’s to assess any given juror’s reaction as the trial goes on. It may hamper the jurors’ ability to evaluate evidence and witnesses or easily hear whoever is speaking in the courtroom. Trials will undoubtedly take much longer than normal just given the difficulty of getting all the necessary people set up in the courtroom each day. It is also likely that other smaller in-person proceedings like bench trials will be disrupted by a jury trial that is happening in the same courthouse. These are a few possible examples of how these safety measures will fundamentally change trials for the foreseeable future. This will be a difficult adjustment for all involved, but an important one to ensure the rights of litigants in New Jersey.
1. For more details as to this executive order, see: https://www.nj.gov/governor/news/news/562020/20201028a.shtml.
2. For more details as to hybrid jury selection see the judiciary’s plan for resuming trials at: https://njcourts.gov/public/covid19.html; and our prior article on virtual jury selection at: https://www.hoaglandlongo.com/blogs/Trials_and_Litigation_in_the_Era_of_COVID19/.