What Civil Jury Trials Might Look Like In The Time of COVID-19

November 24, 2020

Jason W. Balich

This article is part of Wolf Greenfield's COVID-19 Resource Center. To access the full resource center, click here.

Recently, the United States District Court for the District of Massachusetts held a webinar in which several judges discussed their experiences from the first few criminal jury trials that the District of Massachusetts conducted after suspending all in-person trials due to the COVID-19 pandemic. While all jury trials for civil cases are currently still on hold in the District of Massachusetts, the judges’ experiences with criminal jury trials might very well inform what civil jury trials may look like when they are eventually conducted.

First, don’t expect many civil jury trials to proceed. In an effort to maintain social distancing, only the largest spaces within the District’s various courthouses are being utilized for jury selection and for the eventual trials. For example, when a trial is conducted, a maximum of 26 people are allowed in to the largest Boston courtroom, which normally has the capacity for over one hundred people, with the proceedings being simulcasted via videoconference to the other largest courtroom for those not part of the 26-person capacity in the main courtroom. Consequently, the District has only held one trial at a time in the entire courthouse. This will put further pressure on parties to settle prior to trial, or accept a bench trial, given the limited physical resources for holding jury trials.

Second, expect more bench trials and hearings by videoconference. The judges explained that they are getting increasingly comfortable with videoconference platforms, such as Zoom, for remote hearings, and even bench trials. Remote hearings and bench trials have the ability to be conducted without the constraints of in-person jury trials, and so the district remains open for such remote proceedings, even in civil cases.

Third, when in-person civil jury trials do happen, expect it to take longer than usual, get ready for lots of plexiglass and bring fewer people. The judges explained an elaborate system to voir dire potential jurists where groups of 12 potential jurists are interviewed at a time, each over six feet apart. Then, each potential jurist is interviewed individually in what the judges described as a “plexiglass phone booth.” And that’s not the end of the plexiglass. Plexiglass separates the judge from the witness stand and from the court reporter. Plexiglass separates counsel’s tables. And forget about handing a witness anything. Counsel questions witnesses from the counsel table, seated, where all witness materials must be placed for the witness prior to the arrival of the witness in the stand. To top it off, witnesses are expected to do a little disinfecting on their own; cleaning supplies are provided at the witness stand and witnesses are instructed to disinfect the stand prior to testifying using the supplies provided. Given the added precautions, the judges described everything taking twice as long as it normally would, but otherwise the few trials that have occurred have been relatively smooth considering the circumstances.

No one knows when civil jury trials will occur again in the District of Massachusetts, but as the court gets increasingly comfortable with socially distanced criminal jury trials, expect civil jury trials to return at some point, and expect them to look a little different than they did prior to the COVID-19 pandemic.