COVID-19: Will things ever return to ‘normal’ in California courts?

In an effort to return to pre-pandemic normal, many courts in California, state and federal, have greatly reduced COVID-19 restrictions and have resumed in person jury trials in quite the same way they were before the pandemic hit. However, the surge of the highly contagious Omicron -- thought apparently not as severe -- variant of the coronavirus throughout California has caused court administrators and judges to rethink whether the time is right to resume operations at pre-pandemic levels, particularly in conducting jury trials in person. Perhaps in our desire to bring back some normalcy to the judicial process, we are moving too quickly, before all variants of the coronavirus are under control.

Because California no longer has an emergency order in place requiring courts to take certain restrictive measures, the presiding judges of each county are creating their own rules about how to balance justice and public health. This leaves the presiding judges with one of three choices: not do any jury trials at all, only do them remotely, or take their chances on doing jury trials in person.

On Jan. 3, the district court executive/clerk of the court of the U.S. District Court for the Central District of California put a three-week suspension on civil and criminal jury trials due to "an alarming surge of COVID-19 cases nationwide and in the Central District of California largely due to a new variant of the virus that causes COVID-19-Omicron." The Central District is the largest district in California and has courts in Los Angeles, Santa Ana, Pasadena and Riverside.

The statement went on to say, "Given the increased rate of transmission of COVID-19 in the Central District of California due to the Omicron variant, conducting jury trials would place court personnel, attorneys, parties, and prospective jurors at risk. Accordingly, temporary suspension of jury trials is necessary to protect public health and safety, as well as ensure the continuous performance of essential functions and operations of the Court."

Although the temporary suspension is only for three weeks, it expressly provided that the suspensions of jury trials may be extended as necessary, and that the court would continue to monitor the COVID-19 pandemic as it evolves and make adjustments. While civil and criminal trials will be suspended until at least Jan. 24, other significant hearings are expected to be held via video conferencing. A week before jury trials are set to resume on Jan. 24, the district's eight-judge executive committee will meet to decide whether to extend the suspension.

Following the Central District's lead, the Northern District imposed a temporary suspension on all civil and criminal jury trials until after Jan. 26.

The suspension of jury trials will impact both criminal and civil cases. As for criminal cases, some federal judges have begun to dismiss cases on the basis that the delay in bringing the accused to trial violated the defendant's constitutional right to a speedy trial. One federal judge, in dismissing a case for violating the rights of a defendant on a federal gun charge to a speedy trial observed, "Nowhere in the Constitution is there an exception for times of emergency or crisis," Under the federal Speedy Trial Act, defendants' trials in federal courts must start within 70 days of the time the defendant is charged, although this period is frequently extended on the defendant's request to allow him sufficient time to prepare for trial.

The delay in civil trials due to the coronavirus has greatly impacted the resolution of civil cases. Any seasoned civil trial lawyer will tell you that cases are frequently settled shortly before the trial is to commence. They are very familiar with the "settlement on the courthouse steps" the morning the trial is scheduled to begin.

In personal injury cases, there is little incentive on insurance companies to settle a case when the trial date is long time off, as they can invest their funds and reap the profits therefrom while the injured plaintiff may be strapped for money due to an inability to work or massive medical bills. Having a "date certain" for the trial serves as an impetus for the insurance companies to seriously negotiate a fair settlement.

Will the coronavirus and its variants ever be completely eradicated? That is a question for the scientists at the Centers for Disease Control and Prevention and other agencies to determine. But in our haste to become "normal," that is, as it was pre-pandemic, many of us are oblivious to the fact that the coronavirus has forever brought about major and permanent changes to the practice of law and the administration of justice, some good, others not as good. 