'Strange' Times For Mass. Judges As Virus Redefines Court

By Chris Villani
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Law360 (June 1, 2020, 5:36 PM EDT) -- This is part three of a three-part series on how the coronavirus pandemic is impacting the Boston-area legal industry. Part one focuses on lawyers and law firms, part two on law schools and students, and part three on the judiciary.

Chief U.S. District Judge F. Dennis Saylor IV is still coming into the John J. Moakley Courthouse, a large brick building with a spectacular view of Boston's waterfront from the hallways just outside the courtroom doors. But he has not seen the inside of his courtroom in two months.

Instead, the judge is working out of his chambers as the coronavirus pandemic rages on. If a hearing is being conducted via video, he puts a robe on so it at least looks like a courtroom hearing. He also makes sure he doesn't have a big pile of messy papers or a banana peel in view of his camera. He said he feels a little like Robinson Crusoe, rarely seeing another human being save for a passing glance of someone off in the distance inside the parking garage.

"It's pretty darn strange, but really, it's just a variation of what everyone else is doing," Judge Saylor told Law360. "I am weirdly isolated. I guess I've gotten more used to it, but it's bizarre."

The COVID-19 pandemic has upended the legal industry in Boston and beyond, and as attorneys, firms, law schools and students adjust to their new normal, the judiciary is also trying to figure out what that will look like once the courts ramp back up.

Massachusetts' three federal courthouses have remained open during the crisis, but with limited staff and no in-person hearings. All of the state's appellate and trial courts have been closed to the public, with hearings moved to videoconference or teleconference. Jury trials have been halted across the board.

The courthouses are expected to welcome back more people, slowly, over the summer. But all agree that the uptick in virtual proceedings is here to stay. Juries will not be empaneled, at least in the state courts, until September at the earliest, possibly creating a logjam of litigation in cases that are ready for trial.

Meanwhile, judges and courthouse staff are simply "getting by as best we can," Judge Saylor said.

"It's kind of working OK, but there are some bumps in the road and it's certainly not ideal," he said.

Jury Trial Conundrum

Of all the questions hanging over the judiciary, when and how to resume jury trials seems to be the most challenging to answer.

In a recent letter to the state bar, the chief justices of Massachusetts' Supreme Judicial Court, Appeals Court and trial courts wrote that the "hope" is that, if schools reopen in September, the state can once again begin to conduct jury trials.

"But the challenges of conducting jury trials with social distancing during a pandemic are formidable, and will require us to reimagine how juries are empaneled, where they will sit during trial, and where they will deliberate so that jurors can both be safe and feel safe," wrote Justices Ralph D. Gants, Mark V. Green and Paula M. Carey. "We are hard at work trying to address those challenges, and it is premature to predict now what it will look like."

The trial courts are surveying the district and superior courthouses around the state to see which buildings are best equipped to handle jury trials amid social distancing protocols. Quincy District Court First Justice Mark Coven works in a courthouse that holds a lot of jury trials but wasn't constructed with a pandemic in mind.

"We have a very small jury pool room, we are in a terribly overcrowded building with one elevator and one staircase," Justice Coven said. "There are real questions about the safety of potential jurors in our jury deliberation rooms, and our courtrooms are very small."

Criminal cases will be a priority for the trial courts, and Justice Coven said civil cases ripe for trial will be phased in, beginning with some bench trials over the summer. Virtual mediation services are also being offered to try to get cases resolved, he said.

The federal courthouses are more spacious and see a fraction of the number of cases. Even so, Judge Saylor acknowledged the jury trial question is top-of-mind for him as well, especially as many anticipate a bottleneck of cases whenever things reach some semblance of normalcy.

"There is going to be this huge pent-up demand for everything. Everything. Restaurant tables, plane seats, and trial days," he said. "We've been postponing these criminal and civil cases and things are becoming ripe. How are we going to get all of this done? How are we doing to shoehorn everything in the time we have allotted?"

Rob Farrell, the clerk at the federal courthouse, said the Boston building can handle a half dozen jury trials at once. But it's also built for people to be close so they can discuss and deliberate their cases. He and others in his office are working out a plan for resuming federal jury trials.

"When we do reconstitute, I expect we will be seating one jury, one case per day," Farrell said. "We are not going to do the big jury calls we were previously doing."

Seating a panel from a small group of prospective jurors might work for most jury trials, but Boston is home to one of the nation's most high-profile cases. The "Varsity Blues" college admissions case is still scheduled to begin empanelment in late September.

In a big case like that, Farrell said the courthouse would bring in prospective jurors in groups of 25, with one group in the morning and one in the afternoon, and repeat as necessary until a jury is seated.

If the voir dire takes a while, it would stall any others from seating a jury until that trial is ready to begin. And whenever the empanelment process resumes, Farrell said personal protective equipment for jurors will be a must.

No Rush to the Courthouse

While trials have stalled and criminal cases have been postponed, Judge Saylor said most civil cases have been able to move forward.

Overall, Farrell said filings are down on both the criminal and civil side, but some issues, like motions by prison inmates seeking compassionate release due to the pandemic, are more prevalent than ever.

The federal buildings themselves, while open, have been sparsely populated, with just a few court staff each. The courthouse in Springfield was closed for a day to clean public areas after someone attending a trial tested positive for COVID-19. The public counters at the courthouses are closed and will likely reopen in phase two of the state's reopening plan, which can start as soon as June 8, Farrell said.

Opening up the state courts, which are far busier than their federal counterparts, will be even more challenging. The letter from the chief justices noted that "the days when our trial court welcomed approximately 40,000 persons a day into our courthouses are over, at least for the duration of the pandemic."

Justice Coven said the way cases are heard in state court will likely change. He envisioned a hybrid between the "cattle calls" of the past, with dozens of cases packed into a single session, and the process in federal courts, where the relative sparsity of hearings makes it possible for individual cases to be scheduled at specific times.

"I don't think we are going to go back to a time where it's difficult to walk through the hallways of the Quincy District Court because there are so many people waiting for their session to begin," he said.

Plexiglass is being installed at counters, including in the clerk's offices, probation, the district attorney's offices and other areas, Justice Coven said, and PPE will be made available to staff and "probably" to the general public.

But even as Gov. Charlie Baker has outlined a four-phase plan to open up Massachusetts businesses and services, there is no set date for when in-person hearings might resume.

Zooming Into the 21st Century

Like most jurisdictions, Massachusetts has embraced virtual hearings. It's a development that Judge Saylor, who took over as chief judge in January, is pleased to see.

"One of my goals was to try to drag the court into the 21st century in terms of video and telephone conferences, and a lot of my colleagues, both locally and nationwide, have been reluctant to do anything over the phone or by video," he said. "One of the most expensive and problematic things about practicing law is getting in your car from Danvers or flying to Kansas City for a five-minute status conference.

"A silver lining in all of this is we have rapidly developed not only our video capabilities, but also people's comfort with it, because no one has any choice."

The new technology was on display recently when actress Lori Loughlin, sitting in a room with only her attorney from Latham & Watkins LLP, pled guilty to "Varsity Blues" charges with the public and press watching on Zoom.

"We have learned a lot of what we do can be done remotely when it's appropriate to do so," Justice Coven said.

But the virtual push has come with hiccups. During some appellate hearings, including arguments before the state high court, attorneys or justices have had their phone lines drop, bringing the hearing to a halt until they can reconnect. In March, when the Appeals Court first shifted to remote hearings, Appeals Court Clerk Joseph Stanton said lawyers struggled to cradle their phone and juggle their notes.

"One attorney had trouble finding something because she moved her record appendices to her bed to get away from her dog," Stanton told Law360.

"We are struggling through it," Justice Coven said. "Every day is a learning lesson for us."

Proceeding virtually is especially important for the state courts to avoid a backlog of cases, which Justice Coven said would number into the thousands if left unaddressed for three or four months.

But not everything can happen through Zoom or over the phone. A jury trial at the federal level might theoretically be possible if all the parties agreed to it, Judge Saylor said, but it's not clear that it would be constitutional for either criminal or civil cases. Some matters will simply require people to be in the same room.

"We are one of those organizations that, maybe because a lot of what we do institutionally began developing in the middle ages, we are really not set up to do things remotely compared to a high tech company," Judge Saylor said. "What we do has required a lot of human interaction. And we have to work within the confines of the law."

During one May hearing, U.S. District Judge Richard G. Stearns noted that the video feed allowed him to see both of the arguing attorneys better than if they had been standing 50 feet away in his courtroom.

"The system makes it almost impossible for me to interrupt you when you're giving your presentation," Judge Stearns said, chuckling. "Maybe I miss that part of it."

Judge Saylor said he usually looks down during hearings so he can follow along with case citations and filings as the lawyers argue, so he had little to offer in the way of suggestions for lawyers to better argue their cases virtually.

But he did have one aesthetic observation.

"I think we all need haircuts," he said.

--Additional reporting by Brian Dowling. Editing by Brian Baresch.

For a reprint of this article, please contact reprints@law360.com.

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