Minnesota’s federal court will continue with Zoom trials even after COVID

In an interview with Law360, Chief Judge John Tunheim of the U.S. District Court for the District of Minnesota said that his district will continue with civil trials over Zoom even after the coronavirus pandemic no longer makes them necessary. A snippet of the interview:

Our plan at this point is to resume jury trials, and in-person hearings to the extent necessary, on May 3. All of our staff will be vaccinated and beyond the two-week period following the second shot, so we think that by May 1 we should be in pretty good shape for jurors coming in.

I do plan to continue, and urge our other judges to continue, to do as many hearings on Zoom as possible. It’s worked really, really well, and we’re still not in a position where we want a lot of people coming into the courthouse.

I think using Zoom is a very effective tool for bench trials. For jury trials it’s a little more complicated, as we know. But we have a backlog of civil cases that we’re probably not going to get to right away because of the criminal case backlog. We are, for the time being, using only two courtrooms, one in Minneapolis, one in St. Paul, both with substantial amounts of plexiglass. Only using two courtrooms makes it hard to catch up.

I expect to see much more along these lines in the coming weeks and months.

Today’s COVID responses can improve tomorrow’s judicial performance evaluations

That’s the main thrust of my latest guest post at the IAALS blog. Forced to adopt a wide range of technological resources during the pandemic, courts systems are now better situated to use that technology to improve surveys, observe judicial behavior, and communicate wih the public.

People are ducking jury duty amid COVID concerns

Bloomberg Law reports that while some state courts have reopened their courtrooms to live trials, most people called for jury duty are not showing up. In California Superior Court in San Diego, only 5% of those receiving a jury summons actually came to court on their appointed day.

It’s not that courthouses are inherently dangerous, or likely super-spreader locations. Indeed, courts nationwide have made every effort to insure juror safety, and — as importantly — to make jurors feel safe. Massachusetts, for example, has temporarily reduced the jury size from twelve to six, and has installed so much plexiglass in courthouses that, according to Chief Justice of the Trial Courts Paula Carey, some jurors felt safer in the courthouse than at the grocery store.

Still, this is going to be a slow climb back to normalcy. The length of the pandemic has conditioned our brains to think differently about being in enclosed areas with others, and even after we hit herd immunity, it will be a while before we can loosen up again. To keep the docket moving, courts should think about hybrid models, using both live and video components, even after the pandemic subsides.

Defendant seeks delay of major patent trial due to COVID

The primary defendant in a major patent case pending in the U.S. District Court for the District of Delaware has requested a delay of its scheduled trial due to concerns about conducting an in-person trial while COVID-19 rages on.

3G Licensing sued LG Electronics and others more than four years ago, alleging infringement of U.S. Patent No. 6,212,662. The patent concerns a method and devices for detecting transmission errors in data streams. Trial is scheduled for April, but in a letter to the court LG’s counsel worried about the ability to get a representative jury in the midst of a pandemic.

Courts have struggled to deal with trials during the coronvirus surge, with most delaying in-person trials or attempting to conduct them over video. Notwithstanding tireless efforts to assure due process and transparency for all parties, reactions to the videoconferenced trials have been mixed. At some point this year, courts should return in earnest to in-person trials (and will likely have a serious backlog to deal with). But it’s not fully clear whether that moment will come as soon as April.

James Duff to leave AO

James Duff, the longtime Director of the Administrative Office of the U.S. Courts, will retire from that position on January 31. Duff served two stints as Director, from 2006-2011 and again from 2015 to the present. During his tenure, he has brought many significant improvements to the federal courts system’s internal operations and external relationships, including overseeing the federal Working Group on Workplace Conduct and helping the courts quickly adjust to the challenges posed by the coronavirus pandemic. Not every initiative on Duff’s watch has been a success — the effort to bar judges from associating with the Federalist Society and the American Constitution Society was ill-advised from the start — but overall Duff has helmed the AO with a steady hand and extraordinary competence and vision.

Chief Justice Roberts has appointed U.S. District Judge Roslynn Mauskopf as the new AO Director. She will be the first woman to lead the AO in its 81-year history. We wish her the best in the new position.

Chief Justice issues 2020 Year End Report

Per longstanding tradition, while you were anxiously coaxing 2020 into oblivion last night, the Chief Justice quietly issued his Year-End Report on the Federal Judiciary. Also per tradition, this year’s report features more musty anecdotes about the courts, this time focused (predictably) on pandemics. The Chief Justice congratulates the entire court system on its turn to video hearings and trials in the wake of the COVID-19 spread.

Kudos are indeed in order for reacting relatively swiftly, but I will save my formal congratulations for when the federal courts embrace technology with foresight and a commitment to transparency. Here’s an area where the federal courts could learn much from their state counterparts, if they are willing.

Assessing the Supreme Court’s new oral argument format

When the coronavirus pandemic forced it to move to telephonic oral arguments last May, the U.S. Supreme Court adopted a new format. Each Justice, in descending order of seniority, was afforded three minutes to ask questions of each side. The result was much cleaner, and in many ways more interesting, that the conversational scrum that typically erupts at One First Street. Justice Thomas has come alive, knowing that he will be able to get a question out without interruption. And while more junior Justices have some of the wind taken out of their sails for having to wait their turn, some of the follow-up questions have proven to be equally interesting and clarifying.

Of course, not everyone is happy with the new format, and Bloomberg Law reporter Kimberly Strawbridge Robinson has been all over it. Last month, she explained that it has been harder for advocates and reporters to get a sense of what’s on the mind of Amy Coney Barrett, the juniormost Justice, since she is last in the queue to ask questions. And recently, she reported that many of the Justices themselves dislike the format, specifically because it stifles the freewheeling discussion to which they are accustomed. In particular, Justice Breyer, who likes to tease out lengthy hypotheticals during oral argument, has been frustrated to hear the Chief Justice say “your time is up” before the question is even complete.

I’m not sure there is an answer that will please everyone. My gut instinct is to extend the time for oral argument — there is nothing magical about 30 minutes per side — but that will probably just invite more palaverous and repetitive questions. What about submitting written questions to the parties after the argument? I’m just spitballing here. But having enjoyed getting to hear Justice Thomas’s thinking during telephonic hearings — not to mention the clarity of not having everyone talk over each other — I would hate to just have a knee-jerk reversion to the old system when the pandemic subsides.

Chief Justice of Ireland refuses pay raise

Chief Justice Frank Clarke, Ireland’s seniormost judge, will not be accepting the €5,200 (approximately $6,300) annual pay raise afforded to him by that country’s government. The Irish Independent explains that “The move is understood to have been a personal gesture by Mr Justice Clarke in recognition of the economic hardship caused by the pandemic. However, the disclosure is likely to put pressure on colleagues to signal a willingness to do likewise.”

The Irish government approved pay raises for all the country’s judges, as well as other government officials. The pay raises come wrapped in controversy, as the government has simultaneously refused to pay student nurses on the frontlines of the pandemic. The circumstances certainly create an awkward situation for judges, who presumably would like to take the pay hike but also want to avoid public blowback.

Some Georgia courts to broadcast live trials — sort of

I got excited when I saw the headline from a Columbus, Georgia television station: City of Columbus purchasing courtroom cameras to allow public to watch jury trials. After all, one major lesson from the coronavirus pandemic has been that the presence of cameras in the courtroom is far less disruptive than some believe. To be sure, one needs to be cautious about protecting privacy and due process, but those values can coexist comfortably with video technology.

But it turns out that the Georgia court cameras will only broadcast trials into the next room, not out to the public in general. This artificially limits the number of people who can view the trials, learn about the court system, and see it in action.

It’s good, of course, that the courts are at least opening trials again for public view — and cameras are the only safe way to open courtrooms to the general public for as long as the pandemic lasts. But this strikes me as a missed opportunity to bootstrap a transparency measure and turn it into a much larger positive for the courts and the public.

COVID complicates access to New York’s mental health courts

The New York Daily News has a very interesting feature on the Manhattan’s specialized mental health court, and the special challenges facing those who would like to use it during this pandemic-stricken era.

Only a handful of cases ever make it to Manhattan Mental Health Court, according to data provided by the district attorney — and that was before COVID-19 ground the city to a halt. On Friday, after tentatively opening some courtrooms for trials and hearings over the summer, the Office of Court Administration once again shut down most in-person proceedings, citing a recent surge in the virus.

Even pre-COVID, the mental health court moved at a plodding pace. In 2018, the office received 74 requests for referral. Of those, prosecutors consented to refer 43 cases — about 58% — and declined to refer the rest. In 2019, the office got 136 requests. They consented to 46 cases — about 34% — and declined to refer the remaining 90.

The office referred three cases this year before the court shutdown in mid-March because of the coronavirus pandemic. Twelve cases were not referred to mental health court, though two of those were referred to another diversion court. Thirty-five are pending.

The whole story is worth the read, especially for those interested in how specialized state courts can make a difference in people’s lives — if they are accessible.