The Covid-19 pandemic has created challenges everywhere, for everyone, in every kind of capacity. Jury trials have been no exception. That didn’t stop judges from trying to find solutions, and in many respects federal judges have helped pave the way for the rest of the courts.
That’s why about 200 Texas lawyers tuned in Friday to hear from four federal district judges who are considered veterans in trying cases in the Covid era: Judges Rodney Gilstrap and Amos Mazzant of the Eastern District of Texas, Chief Judge Barbara Lynn of the Northern District of Texas and Judge Alan Albright of the Western District of Texas.
They all conducted in-person jury trials throughout last year during a time when trials were few and far between — particularly at the state level due to orders by the Supreme Court of Texas.
And as the judges approach the end of a more recent freeze in jury trials in each of their jurisdictions due to spikes in Covid cases, each judge has upcoming jury trials on their docket and lots of wisdom to share.
Here are the implications, good and bad, that the judges have noticed during the Covid-era jury trials.
When each judge will be back in action
Judge Albright would have been the first judge in the group to resume jury trials. He originally had jury selection for a case between Intel and VLSI scheduled to begin today but moved the trial to Feb. 22 due to the snowstorms that have blanketed a large portion of Texas.
Judge Lynn said she’s getting ready to “get back to jury trials” and has a criminal trial scheduled for Feb. 22 for the defendant on her criminal docket who has been detained the longest. She said nearly all the trials on her docket between now through the summer are criminal.
Judge Mazzant said he will resume jury trials “in full force” beginning March 1, with criminal trials scheduled “every week” throughout the month and one civil jury trial scheduled for March 8. Judge Mazzant had conducted eight in-person jury trials last year before the Eastern District shut down jury trials in late November.
Judge Gilstrap will also resume jury trials on March 1 with a civil trial, and plans to oversee number of trials thereafter.
Willingness to Serve
Despite all the challenges the pandemic has brought to conducting jury trials, jurors’ willingness to serve has not been one of them — at least in Sherman, Waco and Marshall.
“We’ve had a very tiny percentage of people we’ve sent notices to say they prefer not to come because of Covid,” said Judge Albright, who is based in Waco. “We’ve had absolutely no problem in the Waco division for getting jurors who want to serve.”
“We have plenty of jurors who want to serve. That hasn’t been a problem,” said Judge Mazzant, who is based in Sherman.
This was even the case when Judge Mazzant’s eighth jury trial last year had to be halted because of a Covid outbreak. It was ultimately declared a mistrial.
“Despite the issues we had, those jurors wanted to come back and finish the trial,” he said.
Judge Gilstrap, who is based in Marshall, said he recently talked with a Washington, D.C. colleague and explained that unlike the District of Columbia, the Eastern District of Texas doesn’t have “a federal agency on every corner.”
“When people get summoned for jury duty in the Eastern District of Texas … it’s probably the first time they’ve had direct interaction with the national government, and they take it very seriously,” he said.
Even with the pandemic going on, Judge Gilstrap said the jurors who have been summoned for his six 2020 trials “were anxious to serve and excited to have the opportunity to serve.”
Judge Lynn, who is based in Dallas, was the outlier in the group.
“I love the Big D, but people are more cynical … we have a higher percentage of people trying to not get on jury duty,” she said.
Moreover, Judge Lynn said she was disappointed to see “a number of” lawyers trying to get out of jury duty in recent trials.
“I find it extra disappointing that members of the bar do not [recognize the need to] set a shining example for the purpose of jury service,” Judge Lynn said. “If you’re one of them, please be willing and set a good example.”
Air filters, plexiglass and clear masks — oh my!
The safety protocols each judge has taken remain pretty consistent. All have plexiglass in their courtroom. All spread out the trial participants at a safe distance. Industrial air filters have been introduced into the courtrooms. Sidebars are essentially nonexistent for the time being. All require everyone but the witness and questioning lawyer to remain masked at all times. In Judge Lynn’s court, even the lawyer at the podium is required to remain masked.
Balancing the need to read jurors’ full-face reactions to the evidence and the need to keep everyone safe has been a difficult process for everyone. Judge Gilstrap said during one trial, he was able to get the jurors to (voluntarily) switch their masks for face shields provided by the court, but he recognized that a new solution is needed now that new research revealed that face shields are not as effective as masks in preventing the spread of the virus.
“I think it’s vital for the trial process the [for] the court and lawyers to see [jurors’] entire faces, see their body language and facial expressions and see what’s sinking in,” he said.
In one of her recent trials, Judge Lynn said she provided clear masks to the jurors in hopes of getting them to swap out their covered masks, but it only resulted in one person making the switch and a request for the judge’s autograph on the clear mask at the end of the trial.
While Judge Mazzant hasn’t had compliance issues with a mask mandate in his courtroom, there’s been at least one instance in which jurors did not follow his masking instructions while deliberating in the jury room. Since then, he said he has included a question in jury summons about whether jurors have any anti-masking sentient.
“Now I ask if they have a problem wearing a mask all day to let us know,” he said.
To Zoom or not to Zoom?
Although it’s been tested out in courtrooms across the nation, none of the judges were overly enthusiastic about the prospect of conducting jury trials over Zoom.
“I don’t think you can advocate for your clients nearly as well in a virtual setting as you can in person,” Judge Gilstrap said.
Judge Gilstrap is also not a fan of hybrid settings after having an unreliable experience in one of his patent trials last summer. One side had a critical witness in Germany who couldn’t get to the U.S. to testify in person. Instead, he traveled to the Brussels office of one of the major law firms involved in the case and testified remotely from there.
“We connected in advance, tested in advance and thought everything was perfect,” Judge Gilstrap said, but 20 minutes into the witness’ testimony, “we lost connection.”
“In light of that, I’ve told parties that if a person absolutely can’t be there, then take a trial deposition two to three days before the trial starts,” Judge Gilstrap said.
Judge Mazzant agreed that navigating virtual proceedings has been “fraught with problems.” He said he has had some luck in “a limited number of times” connecting remote witnesses or parties first through a dial-in number before getting them on video.
Judge Lynn highlighted the unique challenges the Dallas division has posed on trying to resume jury trials. Her courtroom, for example, is on the 15th floor of the “multi-tenant” Earle Cabell federal building, which is also home to the magistrate and bankruptcy judges, the NDTX’s U.S. Attorney’s Office, the IRS, a passport office and other federal offices. As it stands now, it’s impossible for even two judges on the same floor to safely conduct a socially distanced jury trial at the same time.
“The old days are not coming back — at least in the Northern District — anytime soon,” she said. “We’re going to have to be creative.”
While criminal cases continue to fill her docket, Judge Lynn said she is currently testing whether virtual civil jury trials over “Zoom or a similar platform” would work well in her court after learning from a conference she recently participated in with the Western District of Washington that judges there have conducted four or five Zoom jury trials and had positive experiences.
She said she decided to conduct a mock civil jury trial in April that “is not a real case” to make further assessments, which has yielded an indirect benefit: “good training for young lawyers.”
While Zoom jury trials do not sound appealing to Judge Albright, (“I don’t know what it will take for me to do a virtual jury trial,” he said) he has had a positive experience conducting Markman hearings over Zoom for his intellectual property docket — largely because of the participation that it’s garnered from young lawyers.
While it’s usually “not possible” from a billing or hierarchal standpoint for clients to send an associate to Waco to handle a traditional in-person Markman hearing, Judge Albright said he has encouraged young lawyers to participate in these virtual proceedings and has seen firms take up his suggestion in “almost every” Markman hearing he has overseen.
“I have greatly enjoyed seeing younger lawyers getting their first — not time in court — but getting to appear before a federal judge. That’s a good thing,” Judge Albright said.