March 25, 2021 - 9:57 AM
Civil jury trials have resumed in the Philadelphia Court of Common Pleas. There are, however, significant changes to both the pre-trial hearings and the format of the trial itself. Practitioners, claims adjusters and litigants should familiarize themselves with the new procedures well in advance of trial. Although jury trials are resuming in some states, many jurisdictions are operating on a limited basis and have a significant backlog of cases. It likely will be some time before Courts return to their pre-Covid-19 pace of trying cases.
I. PHILADELPHIA COURT OF COMMON PLEAS
First Priority of Cases in 2021 will be any case listed for trial in 2020 that already had a pretrial conference hearing but the trial was delayed due to the Covid-19 pandemic.
Second Priority of Cases in 2021 will be complex cases scheduled for trial in 2021 with a date certain.
Third Priority of Cases in 2021 will be those cases that already had pretrial conferences this year.
A. Mandatory Settlement Conference Hearing
This applies to all cases that had a trial date in 2020. Sixty (60) days before trial counsel will file a Settlement Conference letter. Fifteen (15) days before the Settlement Conference plaintiff must serve all expert reports. Ten (10) days before the Settlement Conference counsel must meet and confer about settlement. Counsel are expected to participate fully and in a meaningful manner during the meet and confer conference. Eight (8) days before the Settlement Conference all counsel must file a confidential letter discussing the progress made during the meet and confer conference.
The Settlement Conference hearing will be thorough and counsel are expected to be prepared. It will be before a judge and will be scheduled thirty (30) days before trial. The Court may spend up to half a day with the parties. Trial counsel must be present along with the parties and anyone with authority. Counsel should notify the Court in advance if they believe anyone else should be present.
B. The Pretrial Conference Hearing
The Pretrial Conference hearing will be conducted virtually for the foreseeable future. Counsel are strongly encouraged to review the new pretrial conference protocols and should expect to receive a Zoom link before the hearing. Counsel will receive a courtroom occupancy questionnaire and must identify who will be in the courtroom each day. The Court will limit the number of people in the courtroom at any one time as much as possible at this dictates which courtroom must be used. Counsel are cautioned that people not identified on the occupancy questionnaire will not be allowed in the courtroom.
C. The Trial
1. By The Numbers
Due to social distancing restrictions the Court only will be picking juries on Thursdays and Fridays of each week. It will be limited to 120 jurors per day. Litigants will still get a panel of 40 jurors. This means the Court can only conduct 6 jury trials per week.
The Court strongly encouraged all counsel to attempt settlement before a jury is empaneled. Due to the limited jury pool the Court wants to avoid situations where the case is settled after a jury is selected.
2. Jury Selection
Due to jury panel size, voir dire will be conducted in Rooms 243 and 195. Break out rooms will be used for one-on-one follow up questioning. Jurors will be prescreened before they arrive at City Hall. Upon arrival they will be screened again and have their temperatures taken. They will complete a Covid-19 questionnaire. After the jury is selected everyone will be sent to their assigned courtroom.
3. The Courtroom
The jury will now sit in the gallery. Counsel will be seated spaced apart at various desks in the well of the courtroom. The chairs have tape around them on the floor. The chairs cannot be moved but can be turned. Everyone will be six feet apart. It is strongly recommended that counsel visit the assigned courtroom in advance of trial so they may familiarize themselves with the new layout.
A significant challenge will be keeping the number of persons in the courtroom to an absolute minimum. In this regard, the litigants must share a trial technician. The well of the courtroom cannot have any more than eight (8) persons. This essentially equates to trial counsel, second chair if applicable and one or perhaps two client representatives. All trials will be broadcast live on YouTube and will be available to the public. The trials, however, will not be archived. Counsel must ensure that witnesses do not watch the trial on YouTube and are “sequestered” as if it were a typical trial.
All attorneys will complete a Covid-19 questionnaire daily. They also will need to certify that each of their witnesses, clients or anyone else associated with them have completed a Covid-19 questionnaire. The Court is also asking the parties to agree on 8 jurors when possible. If requesting 12 jurors counsel should be prepared to explain to basis for the request.
Masks are mandatory at all times. In fact, wearing two masks (one cloth and one surgical) is encouraged but is not mandatory. The Court will allow persons to take down their mask(s) for a brief sip of water. Face shields, by themselves, are insufficient. Masks must be worn by all witnesses even when testifying and always by counsel. Some attorneys are considering clear masks to allow the jury to see the facial expressions of witnesses. Side bar conferences are strongly discouraged. Instead, counsel are encouraged to file motions in limine in advance of trial. Live trial testimony will not be permitted via a video link. The witness must be in the courtroom but standard videotaped trial testimony from experts remains unchanged. Attorneys are allowed to email and text during the trial if it is related to the case (e.g., texting opposing counsel as opposed to face-to-face conversation). All breaks and lunch will be outside City Hall. No eating in City Hall will be permitted. Counsel should not assume they will be permitted to use a podium and may have to speak from their chairs. This will be the trial judge’s prerogative.
D. Major Non-Jury Trials
Resumed last September. They are being conducted virtually. The Court has completed about 300 and are conducting about 40-55 non-jury trials per month. It is expected that the schedule for virtual non-jury trials will move more quickly than jury trials. Counsel anxious to have their day in court should consider stipulating to a non-jury trial.
II. PRACTICE TIPS
The Court has put a lot of thought and effort into the resumption of jury trials with social distancing practices in place and is taking safety very seriously. For example, some judges will be wearing both a fabric and a cloth mask in the courtroom.
The limiting factor for resumption of jury trials will be the number of jurors that can be called each day, not the number of judges. As such, the Court will be casting a critical eye on anything that uses up jurors (e.g., settlement after the jury is selected and the number of jurors).
Orders setting Settlement and Pretrial Conferences should be carefully reviewed along with the new procedures for the hearings. These hearing are now significantly different than they used to be.
The Court is pursuing a plan of generally keeping people out of City Hall as much as possible except for the actual jury trial. The rule of thumb is if it can be done virtually, it will be.
Litigants should expect robust efforts by the Court at the Settlement Conference hearing regarding possible settlement. Judges may set aside up to half a day attempting to reach a potential settlement.
The courtroom occupancy questionnaire will be very important. Key witnesses or individuals must be listed or they will not be getting into the courtroom. Counsel also will need to certify that they have screened their witnesses and parties for Covid-19. Counsel will receive a screening questionnaire that must be completed every day and kept on file.
Broadcasting of the trials via YouTube offers claims adjusters the unique option of watching the trial from their own desk without having to travel or send an independent adjuster. This is a significant change providing claims adjusters with an opportunity to monitor the trial and jury reactions in real time. It also could be used to provide useful feedback to trial counsel.
In sum, civil jury trials have resumed in the Philadelphia Court of Common Pleas and other jurisdictions as well. Trial counsel, claims adjusters and litigants, however, should be prepared for significant changes in the courtroom procedures.
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