COVID Prompts Compromise: Jury Trial Set to Proceed In-Person Partially

August 5, 2020

Marie A. McKiernan

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


UPDATE: THE FOLLOWING CONTENT WAS ADDED AUGUST 5, 2020

After Judge Stark’s order, the District of Delaware extended the restriction on jury trials. On July 16, 2020, the Court announced all trials scheduled to begin before August 31, 2020 are continued pending further order. In light of the district-wide order, and arguments made by letter to the Court by the parties, Judge Stark continued the trial previously set for August 3, 2020. The Court is taking under consideration the parties’ argument regarding when the trial should be set to proceed. 

THE FOLLOWING CONTENT WAS ADDED JULY 9, 2020 

In conjunction with COVID-19-related restrictions being eased, courts are grappling with the question of when to resume jury trials and how to keep the litigants, attorneys, witnesses, jurors and court staff safe once they do. A recent order from the District of Delaware provides an example of how courts may proceed with jury trials balancing safety risks with the practical reality of litigation. 

In the District of Delaware, jury trials have been cancelled pending further order from the Court through July 31, 2020. However, a high stakes jury trial is currently set to go forward in the District of Delaware on August 3, 2020. Sunoco Partners Marketing & Terminals L.P. v. Powder Springs Logistics, LLC, et al., C.A. No. 17-1390-LPS-CJB (D. Del.). In his order, Chief Judge Leonard P. Stark acknowledged that “[d]ue to the ongoing impact of the coronavirus pandemic, there is a great deal of uncertainty as to whether it will be possible to conduct a jury trial safely in this District in approximately five weeks—and, if so, what that trial will look like.” 

Prior to determining that the patent infringement trial will go forward, Chief Judge Stark posed COVID-19-related questions to the litigants in this matter. Namely, Judge Stark inquired whether any party, members of the trial team or witnesses would be unable to or should not travel to Delaware or be in the courtroom physically in August due to health considerations for his or herself or members of his or her household. The Court also asked “whether the Court should consider an order that permits only a limited number of lawyers, probably two or three per side, and a corporate representative, to be in the courtroom for trial, and requires all other lawyers to appear remotely by video and requires all witnesses to testify remotely by video.” 

Considering the responses from the litigants, the Court ultimately decided that the August trial will go forward. However, the Court imposed several restrictions aimed at protecting the health and safety of the jury. 

Among the restrictions, the Court decided to prohibit witnesses from testifying in the courtroom. In addition to ensuring the safety of the jury, the Court noted that having witnesses testify remotely would eliminate the risk of undue prejudice that could arise if one litigant had more witnesses appear in person while the other had witnesses appear remotely, obviate the need to determine whether witnesses would need to wear face coverings when testifying, ensure the ability to socially distance within the courtroom, and protect against any pressure witnesses might experience to conceal COVID-19-related symptoms or concerns to ensure they could testify in person. 

The Court also limited the number of “representatives” each party can have attend in-person proceedings. Plaintiff was limited to four representatives, while each defendant was limited to three. Per the Court’s order, one slot was required to be used by local, Delaware counsel. The parties were then free to use the other slots for out-of-state counsel, jury consultants, staff assistants and corporate representatives. The Court also mandated that the parties work with court staff to coordinate arrangements for the partially remote trial, including the elimination of paper exhibits for the jury. 

The trial will be videocast into another room in the courthouse for interested members of the public or media to “attend” while adhering to social distancing and face covering guidelines. 

Chief Judge Stark noted that this trial would be “something of an experiment” and advised that whether and how to proceed with jury trials is a highly case-specific inquiry and determination that should be made by the presiding judge in each specific case. 

The compromise struck by Judge Stark may be one seen with increasing frequency as other jurisdictions begin to resume jury trials. However, as Judge Stark noted, this trial would be “something of an experiment.” As indicated in Judge Stark’s order, whether and how to proceed with jury trials is a highly case-specific inquiry and the determination should be made by the presiding judge considering the attendant status of COVID-19 rates in the particular geographic location.