Trial Alternatives Getting Fresh Look With COVID-19 Backlog

By Jack Karp
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Law360 (February 4, 2021, 10:46 AM EST) -- Courts are scrambling for ways to dig out from under a backlog of cases that one Maine judge calls "staggering."

On March 31, Maine's courts had 28,984 civil and criminal cases pending. On Jan. 22, 10 months into the pandemic, there were 40,782, according to the state's acting Chief Justice Andrew Mead.

Tennessee courts have 2,300 more civil cases pending now than in January 2020, according to that state's court system.

And Florida's court system anticipates that by June there will be more than 1.1 million more cases pending than there would have been absent the pandemic, according to Michael Tanner, chair of the Florida Bar's COVID-19 Pandemic Recovery Task Force.

"It is just a huge monolith that seems insurmountable at this point," Justice Mead told Law360 Pulse.

So courts, judges and attorneys are reaching for a host of lesser-used avenues to resolve some of those cases. Mediation, virtual jury and bench trials, and "special" judges are some of the approaches getting a fresh look in the shadow of the backlog.

The ones that work will likely become a regular feature of the judicial landscape, judges and attorneys say, even after the pandemic.


Mediation is always an option in most civil cases, but "the pandemic has increased the need to include mediation as just one of many tools available to the courts," said Barbara Peck, director of communications for the Tennessee state courts.

Her court system is working with three community mediation centers to develop a method for sending cases to be resolved by a neutral third party, Peck said.

Judges are encouraged to review their dockets and request or even order litigants to mediate appropriate cases, particularly when the parties are self-represented, according to Peck.

Almost 300 mediators have volunteered for the program, Peck said, making it free for anyone without an attorney.

Alternative dispute resolution provider JAMS is piloting a similar pro bono project in Philadelphia. Working with courts, government agencies and the local community, JAMS panelists donate time and expertise to help resolve landlord-tenant disputes, according to Kimberly Taylor, JAMS' senior vice president and chief legal and operating officer.

"And we've had conversations with other court systems around the country that are looking at putting together mediation programs to try to clear up their backlogs," Taylor said.

JAMS hopes to launch similar efforts in Chicago, Los Angeles and San Francisco soon. "So I think that's something that I anticipate we'll be doing a lot more of in 2021," she said.

Bench Trials

Bench trials can also hasten cases' transit through the courts, according to Michele Johnson, chair of the litigation and trial department at Latham & Watkins LLP.

That's because a bench trial, in which a judge determines the verdict, eliminates the need for a jury at a time when court closures and health protocols have made mustering juries extremely difficult.

"The biggest backlog is clearly in jury trials. We have had dozens of jury trials postponed, some multiple times, some indefinitely," Johnson said, but bench trials "have been proceeding regularly with great success."

Johnson said she changed course for a major jury trial she had scheduled last summer, agreeing to a bench trial via video instead after she realized a jury trial might not occur until the fall of 2021 or later. The bench trial took place as scheduled.

"We were able to examine witnesses from all around the world without having to travel, and our trial tech specialists created a flawless trial experience," she said. Her team has waived jury trials in favor of bench trials in several cases since.

But bench trials aren't usually an option in criminal cases, said Bexar County, Texas, Administrative Judge Ron Rangel. Early in the pandemic, he hoped that at least the misdemeanor cases in his court could be handled by bench trials, but that hasn't come to pass.

Criminal defendants have a constitutional right to a jury trial, and must waive that right to have a bench trial, Judge Rangel said, which happens rarely.

Case backlogs may be changing that calculus, at least in some states. The Georgia Judicial Council held an emergency session Feb. 1 in which it considered permitting judges to order criminal bench trials over prosecutors' objections, though defendants would still have to agree.

"Hopefully that will be far enough to help us work our way out of the backlog of at least some of the cases," Georgia Supreme Court Presiding Justice David E. Nahmias said at the meeting.

Trial by 'Special' Judge

Another means of eating into the backlog in Texas is to use trials by special judge, said Dan Hinde, a former state judge who is now a partner at Schiffer Hicks Johnson PLLC.

Quietly tucked away in the state's Civil Practices and Remedies Code, the procedure lets litigants try their case before a former judge rather than a sitting judge, in something that amounts to a hybrid between arbitration and a bench trial, according to Hinde.

The procedure means litigants don't have to compete with other cases on a special judge's docket, since there aren't any.

"The special judge is going to set your case and only your case for trial, so you've got a firm trial set and you're not going to get bumped by a case," Hinde said.

The parties choose their judge as well, meaning that in technically complex cases, a judge experienced in the subject matter can save the time that might otherwise be spent educating them about the topic.

And unlike in arbitration, litigants have the same appellate rights from a special judge's decision as they do from a sitting judge's decision in a bench trial, Hinde said.

Special judges are unique to Texas, but other states have similar rules.

Florida law outlines a framework under which civil litigants can agree to have a "non-judge" — often a retired judge or a trial lawyer — appointed as a trial resolution judge, said Tanner at the Florida Bar. The procedure is one of three recommendations the Pandemic Recovery Task Force he chairs recently adopted for dealing with the state's trial backlog.

California Chief Justice Tani G. Cantil-Sakauye instituted a program making retired judges available to hear backlogged criminal cases in December. The initiative temporarily suspends requirements that retired judges wait 90 days before sitting on assignment and that courts get approval in advance for using assigned judges after they surpass service-day limits.

"We have already received quite a few requests from courts for assigned judges to support their implementation of the chief's special program," said Blaine Corren, a spokesman for the Judicial Council of California.

Virtual Jury Trials

The cases seeing the most severe delays are those awaiting jury trials, both judges and attorneys say. With courtrooms largely closed and those that are open maintaining limits on capacity, there have been vanishingly few jury trials since the pandemic began.

So much of the focus on reducing the backlog is turning to implementing virtual jury trials, judges say.

A Collin County, Texas, court held what is believed to be the nation's first teleconference jury trial in May. The nonbinding summary jury trial over an insurance dispute was a test case, according to Judge Emily Miskel, who managed the technological aspects of the case while another judge presided.

Judge Miskel said virtual court proceedings can be a boon for self-represented and indigent litigants, who may face hurdles to physically coming to court, and she's calendared several virtual jury trials for February and March.

Judge Rangel in Bexar County said the first virtual jury trial there was held successfully in November, and his colleagues have tried about one per week since. Florida courts recently established a pilot remote jury program in several courts as well, Tanner said.

"I've seen how good it is for the self-represented litigants, so I probably will still do a lot of virtual trials for them, even when we're able to be back in the courthouse," Judge Miskel said.

But virtual jury trials are "more cumbersome," acknowledged Judge Rangel, because they require two judges — one to preside over the case and one to handle its technology.

They have also been used almost exclusively in civil cases due to the greater constitutional protections afforded criminal defendants.

"I can't imagine any defense lawyer worth her or his salt agreeing to a virtual jury trial for a criminal defendant," Tanner said.

Those constitutional concerns are why Maine courts ruled out virtual jury trials early in the pandemic, according to Justice Mead, although he said the state's courts are holding hundreds of nonjury remote proceedings.

Despite those drawbacks, virtual jury trials will likely remain necessary even after courts reopen in order to make a dent in the backlog built up by then, judges say. That's especially true for civil trials as criminal trials are prioritized in recently reopened courtrooms.

Justice Mead has already issued what he called a "reality check letter" telling the public that priority cases like those involving child protective matters and defendants waiting in jail had filled the courts' in-person and video dockets, and all other matters would be put on hold indefinitely.

So as resistant to holding online jury trials as he's been, that could change, he admitted, adding, "If this thing is going to be around for a couple more years, we may want to revisit it."

--Editing by Orlando Lorenzo and Brian Baresch.

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