The number of federal civil jury trials in Texas during the COVID-19 pandemic can be counted on two hands, and there will probably be even fewer during the next few months, according to three federal judges who spoke Thursday at the annual meeting of the Texas General Counsel Forum.
U.S. District Judge Karen Gren Scholer of the Northern District of Texas and U.S. District judges Alan Albright and Robert Pitman of the Western District of Texas told about 200 corporate general counsel viewing via Zoom that the backlog of civil jury trials is long and growing.
Because criminal cases take precedent, some commercial civil disputes are already being rescheduled for 2022, they said.
“There is a lot of frustration and concern about trials going forward,” Judge Scholer said. “Have some patience. We are doing the best we can.”
Judge Albright, who sits in Waco, agreed.
“My sense is that we will not be doing any [trials] for the rest of the year,” he said.
Judge Albright said that he has held 35 Markman hearings by Zoom since March and conducted three jury trials in October. He said he has offered parties the option of doing trials remotely, but he has had no takers.
Judge Pitman, whose chambers are in Austin, said that he has two trials scheduled for December.
All three judges explained the extraordinary steps they and their court personnel are taking to limit the risks of COVID to the parties, lawyers and jurors. Despite these detailed measures, they agreed there are still risks and pointed to the recent federal trial in Sherman in which 15 of the participants contracted the coronavirus during the trial.
“I want every GC to consider doing a Zoom trial because it [COVID delays] is going to be a while” before the federal courts are able to conduct in-person civil trials, Judge Scholer said.
One problem, according to Judge Pitman, is that lawyers are citing the coronavirus when asking the courts to revisit discovery orders and deadlines.
“They say, ‘COVID,’ like it is a magic code word,” Judge Pitman said. “You need to tell me why COVID is impacting your Zoom deposition.”
The judicial panel, which was moderated by Leon Carter of Dallas-based Carter Arnett, also shared their biggest concerns.
COVID aside, Judge Scholer and Judge Pitman said that the lack of trial experience among senior-level litigation associates is worrisome. They told the general counsel to push their outside counsel to have their young lawyers get more courtroom experience.
Judge Pitman also said it bothers him when businesses send a corporate representative to court who doesn’t have the authority to make decisions.
“Make sure the person with authority is there,” he said.
Judge Albright said his pet peeve is simple: “If I ask a question during a hearing, directly answer the question,” he said. “I know when you are not answering my question, and answering my question is more important than anything you want to say. And if I rule in your favor, stop arguing.”