What to Expect in Reopening the Central District of California Courthouses
"It is important that we reopen. . . although not back to normal any time soon."
– The Honorable Cormac J. Carney, Chief Judge, United States District Court,
Central District of California
Webinar Address Recap. Tuesday, June 9, 2020, the Chief Judge of the Central District of California addressed the Los Angeles Federal Bar Association and 23+ other bar associations. The Honorable Cormac J. Carney is the new Chief Judge. In conversation with the Honorable Michael W. Fitzgerald, the Los Angeles FBA President and also a Central District judge, the two discussed reopening the Central District Courthouses. Here is what I learned from them regarding their carefully considered safety measures for staff and visitors to the courthouses.
Phase 1, 2, 3. Currently the court is in Phase 1 – Getting the courthouse ready. What that means is there will be plexiglass in the courtrooms for judges that want it. Within each courtroom, it is up to the judge as to procedures in the courtroom (e.g., witnesses and defendants wearing masks). Regarding whether the public and family members of the defendant will be in the courtroom, also depends upon the judge. Some judges may choose to have a camera feed to another room for the public and family members. Throughout the courthouse, there are some uniform rules such as marshals will wear masks and no more than two people in an elevator.
Phase 2 – In person hearings start June 22. The real goal of this phase is to chip away at the criminal backlog. Video hearings may continue by some judges, although Chief Judge Cormac is not personally using video. He is reluctant to allow Zoom, or other platforms, for fear of hacking. There will be spacing of hearings and no waiting in large cattle calls.
Phase 3 – Jury trials. Getting jurors to come to the courthouse will not happen in June and it is doubtful that jury trials will occur in July. Chief Judge Cormac hopes to have jury trials in August, September or October. It is up to the individual judge as to whether the jury trial is in person. [That leaves the door open for online jury trials for judges who choose to consider them.] There are 125 decisions being made by the courts to begin in person jury trials. Questions the judges are considering: Who gives the jurors a mask? If jurors have their own masks, what to do if there is a slogan on it? How do they handle breaks and allowing the number of jurors in the restrooms? Will jurors use a vacant courtroom for deliberations? Where will jurors stick their lunch? Chief Judge Cormac noted that jury trials are easier with the 6 or 8 jurors in federal civil trials, than the 14 jurors they have in criminal trials. Since there are many decisions to be made for a jury trial, a hearing 8 days before the trial will occur to deal with jury issues.
Discovery. Magistrate judges will make decisions on how discovery is conducted. Discovery now takes longer. Stipulations to continue trial dates are up to the individual judge. In planning your civil trial, it will take extra time.
My Take. Coming out of this pandemic, some jurors will be hesitant to begin jury duty by Fall 2020. All the safety measures taken by the courts alleviate some fears and the more that can be done online with the jury summons and jury questionnaires to excuse hardships, the better. Once jurors are in the courtroom, they will be anxious to get to the evidence. Whatever trial lawyers can do to better strategize cases, prepare witnesses and gather expert opinions, will need to cut to the chase. Preparation during this pandemic down time, while consumers are eager for new activities, is an opportune time to assess jurors' attitudes and to gather online survey evidence. In Lanham Act cases, survey evidence is crucial. Touch less online platforms for focus groups and summary jury trials will become more common as well. More on that later.