Lawyers and clients involved in litigation in the United States are wondering – will the court systems throughout the United States shut down temporarily because of the coronavirus? We analyze the issue from two perspectives – jury trials and nonjury proceedings.
See the March 15, 2020, 2:30 EST update at the bottom of this page.
Jury Trials
As anyone ever called for jury duty knows, most jury selection, especially in urban areas, starts with the jury assembly room. Potential jurors wait in a line to check in with a court official, and are then shepherded into the jury assembly room. These jury assembly rooms contain hundreds of seats where potential jurors sit, side by side, waiting for instruction. A court official will greet the potential jurors. In some jurisdictions, the potential jurors are shown a movie about the jury selection process.
After instructions are given by the court officials, the potential jurors will wait in the assembly room until their names are called, to be guided into a courtroom where the jury selection process continues. As each trial judge is ready to start the jury selection process, the courtroom will place a call to the jury assembly room and a batch of potential jurors will be sent that courtroom. The process continues for several hours until each courtroom has seated its jury. Any jurors left in the jury assembly room are then dismissed. The process can last for several hours, during which the jurors wait in the assembly room.
When a group of potential jurors is sent from the assembly room to a courtroom, the potential jurors enter the courtroom and are seated. The trial judge will give instructions to the group. The judge and the lawyers for each party will ask questions of each potential juror, disqualifying potential jurors for various reasons, such as whether a potential juror knows any of the parties, the judge, or the lawyers involved in the case. Eventually, the jury is officially seated and the trial itself will begin.
The jury selection process will usually take several hours, and can potentially last an entire day. During this time, each potential juror is in close quarters with dozens or more people, for many hours.
A jury trial can last between one day and several weeks, during which time the jurors sit in the jury box next to each other. During breaks in the proceedings, including a lunch break, the jurors are shepharded into the jury room, typically a small, windowless room with a conference table, around which the jurors sit. After the conclusion of the evidence and the judge giving the jury what are known as jury instructions, the jurors deliberate until a verdict is reached. Deliberation can be as short as half an hour, but can run, especially in complex cases, to several days.
In most jurisdictions, there is a juror, known as the alternate, who is treated as any other juror, except that person is excused once deliberations begin. If a seated juror stops attending the proceedings, such as because of an illness, the alternate will be seated as a juror. Most jurisdictions provide for one alternate. If two members of the jury become ill, the jury will not have sufficient members to reach a verdict, and a mistrial will be declared.
Other than an airplane, cruise ship or subway car, it is hard to imagine an environment more conducive to spreading a communicable disease than a jury assembly room, where people sit in very close quarters for hours. Moreover, most activities where people congregate in close quarters are done on a voluntary basis. If you are concerned about the virus, don’t fly or get on a subway. But jury duty is compulsory. Indeed, there was a case in 2019 where a Florida man was sentenced to 10 days in jail for missing jury duty.
We don’t know the future, but it is hard to imagine that the jury trial system does not come to a halt and that courts are not impacted in this regard in areas of the country hard hit by the coronavirus. Court officials will either suspend jury trials until the coronavirus crises passes, or people will simply stop showing up for jury duty, forcing a suspension of jury trials.
Nonjury Proceedings
Most of the activities that occur in a courthouse on a daily basis do not involve juries. There are proceedings, such as a probate matters and divorce matters, that do not typically involve juries. There are also motions that are argued on a regular basis – such as motions to dismiss, motions for summary judgment, and discovery disputes. These motions do not involve juries.
With respect to nonjury trials, it is easy to see that those could continue on through the coronavirus crisis, so long as lawyers, their clients, and witnesses are willing to enter a courthouse. But query – if I have been subpoenaed to testify at a nonjury trial and I am elderly or sick – am I going to enter a courthouse to testify? If witnesses refuse to enter a courthouse, nonjury trials might have to be postponed, at least until the crisis passes.
With respect to motion practice that goes on every day in courthouses, those too should be able to continue, at least to some extent. Many jurisdictions allow for telephonic participation in a motion, so those too should be able to continue.
March 15, 2020 Update (2:30 EST)
California
The California Supreme Court has thus far refused to order the California court system closed. Instead, the following message appears on the Court’s website:
The Judicial Council continues to closely monitor the evolving COVID-19 coronavirus situation and share information with all courts. Courts have been advised to follow guidance provided by the Department of Public Health, and the federal Centers for Disease Control and Prevention to limit the spread of the virus. Any updates will be communicated through local court websites as appropriate.
Los Angeles County
The Court Los Angeles Court issued a memorandum dated March 13, 2020, which states:
The Presiding Judge of the Los Angeles Superior Court does not have the authority to close the courts in the event of a pandemic, which is what we are facing now, because such emergency orders must be authorized by the Chief Justice and/or Governor. Courts are less akin to schools and more like hospitals and other emergency services that need to stay open to serve the public at all times. We are slowing down our trial court operations in a reasonable and responsible way, while still providing services that protect public health, welfare and safety.
The memorandum goes on to state:
Effective Monday, March 16, 2020:
1. All new Civil jury trials should be continued for at least 30 days and all preference jury trials should be continued for at least 15 days;
2. All Criminal jury trials, where statutory time has been waived, should be continued for at least 30 days; and
3. Limit new jury panel requests within the next 30 days due to concerns about juror availability.
San Diego
The Superior Court of San Diego has issued a new release, on March 13, 2020, which states the following:
In order to reduce the need for jurors, the Court is postponing all Civil Court Jury Trials Downtown and in North County which are currently set to commence on or before March 31, 2020. Any questions regarding postponements should be directed to the Trial Department, including whether parties need to appear for scheduled pre-trial hearings Civil Bench Trials, Criminal Trials and ongoing Civil Trials are not affected. The postponement of upcoming Civil Jury Trials begins today and those trials will be reset after March 31, 2020. The postponement does not apply to Unlawful Detainer trials.
The Jury Commissioner will ensure no more than 250 jurors will be present in the Jury Lounge at any time to allow space for jurors to practice social distancing.
San Francisco
The San Francisco Superior Court updated its website on March 13, 2020:
CIVIL
Jury trials will be continued for 90 days from the date they have been scheduled. Exceptions to this will be preference cases and trials already in progress. Counsel or unrepresentated parties must appear for trial call either in person or by telephone. Telephone appearances must be arranged through Court Call by calling 1-888-88-COURT.
Law & Motion: all attorneys are encouraged to appear by telephone. Telephone appearances must be arranged through Court Call by calling 1-888-88-COURT. No prior notice or permission is required.
UNIFIED FAMILY COURT
Family Law and Motion: matters will be continued by agreement of the parties or at the discretion of the Court.
Scheduled mediations will proceed telephonically unless they are continued by agreement of the parties or at the discretion of the mediators. In-person Family Court Services orientations on the readiness calendar are cancelled. Orientation handbooks will be distributed.
PROBATE
All in-person visits related to guardianship and conservatorship cases are suspended until April 15, 2020. As suspension of in-person visits may result in initial appointment petitions being continued, the court invites counsel to file for temporary guardianships and conservatorships when the need to appoint a fiduciary is urgent.
San Mateo
The Superior Court of San Mateo issued a notice which states the following:
Information for prospective jurors
The Court has a constitutional duty to remain open to serve the needs of the community to the greatest extent possible, even in the face of a potential COVID-19 outbreak. However, the Court is working with counsel and litigants to minimize the need to call in jurors, reduce the number of jurors summoned to an individual courthouse at a given date or time, and comply with CDC and San Mateo County Public Health guidelines concerning safe distances and assemblies.
As of today, it looks like the courts in San Mateo will continue to function.
Florida
On March 13, 2020, the Chief Justice of the Florida Supreme Court issued an administrative order, which includes:
2. All grand jury proceedings, jury selection proceedings, and criminal and civil jury trials are suspended during the period beginning Monday, March 16, 2020, through Friday, March 27, 2020, or as provided by subsequent order. However, a proceeding that has been commenced may proceed to completion if the presiding judge, with approval of the chief judge, determines that completion of the proceeding without delay is required by the interests of justice. In addition, the requirements of the double jeopardy clause must be considered in criminal proceedings.
3. All time periods involving the speedy trial procedure, in criminal and juvenile court proceedings, are suspended from the close of business on Friday, March 13, 2020, until the close of business on Monday, March 30, 2020, or as provided by subsequent order.
5. All rules of procedure, court orders, and opinions applicable to court proceedings that limit or prohibit the use of communication equipment for the conducting of proceedings by remote electronic means are suspended from the close of business on Friday, March 13, 2020, until the close of business on Friday, March 27, 2020, or as provided by subsequent order. However, the requirements of the confrontation clause must be met in criminal proceedings.
6. During the duration of this order, the chief judge of each judicial circuit is authorized to establish temporary procedures for the use, to the maximum extent feasible, of communication equipment for the conducting of proceedings by remote electronic means, as are necessary in their respective circuits due to the public health emergency.
Broward
The court system in Broward appears mostly closed. The court’s website, updated March 13, 2020, states:
Fort Lauderdale, FL – All jury duty service in the Seventeenth Judicial Circuit Court is suspended for the next two weeks, March 16 – March 20, 2020 and March 23 – 27, 2020. All other Court operations are resuming as normal until further notice.
All citizens currently serving on a panel shall continue their service through the duration of the assigned trial unless otherwise ordered by the judge.
A decision will be made at a later date regarding future juror responsibilities.
COVID-19 UPDATE: BROWARD COURTS CLOSED TO PUBLIC
For Immediate Release March 13, 2020
PLEASE NOTE, THIS INFORMATION IS SUBJECT TO UPDATES AS THE DAY PROGRESSES.
Fort Lauderdale, FL – The Seventeenth Judicial Circuit has implemented its Continuity of Operations Plan, and accordingly, no public access will be allowed at any of Broward County’s four courthouses beginning Monday, March 16, 2020, for a period of two weeks.
The only exceptions at the Main Central Courthouse are for the following:
- Persons seeking domestic violence injunctions (2nd floor, West building)
- Jurors currently empaneled in trial in certain criminal cases
- Persons permitted, by advance notice, by the Chief Judge and/or presiding judge
Essential due process proceedings will still be held in the Main Central Courthouse (First Appearances, a.m. and p.m.; Juvenile Detentions p.m.; Juvenile Shelters, p.m).
Until further notice, no proceedings will be held at any satellite courthouse (North Regional in Deerfield Beach; West Regional in Plantation; South Regional in Hollywood).
Courthouse staff will report to work as normal.
The Court’s website also directs persons to a link with a series of local administrative orders that will be updated.
Miami
The Court for Miami Dade County has collected its updates here. The update for March 15, 2020 includes the following:
On Friday, March 13th, Florida Supreme Court Chief Justice Charles Canady issued Administrative Order AOSC 20-12 suspending legal time limits, grand jury proceedings, jury selection proceedings, and jury trials beginning Monday, March 16th, for a period of two weeks ending on March 30th. In addition, the Administrative Order suspends all rules of procedure, court orders and opinions that formerly limited or prohibited the use of communication equipment for remote court proceedings. This means that jurors do not have to appear for jury duty during these dates.
In civil matters, the court is moving to as many remote or telephonic hearings in as possible. This includes family, circuit civil, county civil and probate cases. Litigants represented by an attorney with questions about a hearing on a civil matter should reach out to their attorneys. Litigants who are self-represented should call the presiding judge’s office.
Felony Criminal
Bond hearings will continue as they normally do.
Arraignment hearings will be heard but the defendant’s presence is not necessary. If the defendant does not appear and there is no written plea, the case will be reset to a future date.
Emergency hearings will be scheduled as needed.
Misdemeanor Criminal
Bond hearings will continue as they normally do.
Arraignment hearings will be heard but the defendant’s presence is not necessary. If the defendant does not appear and there is no written plea, the case will be reset to a future date.
All misdemeanor criminal trials are suspended for the next two weeks, March 16-March 27.
Emergency hearings will be scheduled as needed.
Traffic
a. Parties do not have to appear at pre-trial conferences, they will be re-set to a future date.
b. All misdemeanor criminal traffic trials as well as civil traffic trials are suspended for the next two weeks, March 16-March 27.
Domestic Violence
Domestic violence intake centers will be open.
Civil Injunction (restraining order) hearings will continue.
Criminal domestic violence cases:
Bond hearings: for the next two weeks, March 16-March 27, criminal domestic violence bond hearings will be held at 11:00 a.m. in Courtroom 5-3 of the Richard E. Gerstein Justice Building, 1351 NW 12 Street.
Arraignment hearings will be heard but the defendant’s presence is not necessary. If the defendant does not appear and there is no written plea, the case will be reset to a future date.
Emergency hearings will be scheduled as needed.
Risk Protection Order hearings will continue.
Delinquency
Detention hearings will be handled remotely.
Arraignment hearings will be heard but the defendant’s presence is not necessary. If the defendant does not appear and there is no written plea, the case will be reset to a future date.
Emergency hearings will be scheduled as needed.
Telephonic/remote hearings will be held as needed.
Dependency
Shelter hearings will take place as they normally do.
Emergency hearings will be scheduled as needed.
Telephonic/remote hearings will be held as needed.
Baker Acts and Marchman Act Hearings will proceed as they normally do.
Palm Beach
The Court’s website states the following:
Today, the Chief Justice of the Supreme Court of Florida entered Administrative Order AOSC20-13. The order suspends all grand jury proceedings, jury selection proceedings, and criminal and civil jury trials beginning Monday, March 16, 2020 through Friday, March 27, 2020.
At this point in time, the courts of the Circuit are proceeding with all court events with the exception of those outlined in paragraph 2 on page 3 (and listed above). Therefore, if you have a scheduled court hearing and it is not a jury trial, you must appear either in person or telephonically. If you wish to appear telephonically, please contact your attorney. If you do not have an attorney you must contact the divisional judge’s office in advance. The courthouses are open.
Massachusetts
The Supreme Judicial Court of Massachusetts issued two orders, one stopping the empanelment of new juries, and the other limiting access to all courthouses for certain people at risk.
New Jersey
The New Jersey Court system maintains a website with updates.
On March 12, 2020, Chief Justice Rabner suspended new jury trials.
On March 14, 2020, Chief Justice Rabner suspended municipal court for two weeks.
New York
Chief Administrative Judge Marks has issued a memorandum dated March 13, 2020 which begins the process of closing the court system in New York. Highlights of the memorandum:
Jury and Jury Trial Matters: Effective this Monday, March 16, civil jury trials in which opening statements have not commenced shall be postponed until further notice; civil jury trials already commenced shall continue to conclusion. Criminal jury trials shall continue where jeopardy has attached; no new criminal jury trials shall be commenced. The jury selection process in civil and criminal trial matters shall be suspended until further notice. Existing grand juries will continue, upon consultation of the appropriate district attorney and empaneling judge. No new grand juries shall be empaneled absent exceptional circumstances.
Motion practice: Effective March 16, unless otherwise directed by the court in exceptional circumstances, all motions in civil matters shall be taken on submission. When permitted, argument should be conducted by Skype or other remote means whenever possible.
Texas
Texas appears to be one of the few states that has prepared a statewide index of court closings.
Washington State
The State of Washington has prepared a statewide index of court closings.
