Back to Virtual and In-Person Jury Trials: Update on New York & New Jersey Courts

New York, N.Y. (March 1, 2021) - Although we are still in the middle of the COVID-19 pandemic, this has not stopped the steady flow of litigation faced by the court system. And with many court houses and in-person legal proceedings on hold as a result of the pandemic, states are seeing massive trial calendar backlogs. Different states have sought different solutions to this problem. In New York and New Jersey, the courts briefly sought to resume in-person jury trials, despite the various shut down orders across both states.

For example, in New York, jury trials resumed in September 2020 with a pilot program in Westchester and certain areas of Long Island. In October 2020, there were attempts to extend in-person jury trials to the five boroughs of New York City. Our New York office was one of the first offices to try such case during that period, with Partner James T. Whalen, Jr. securing a favorable verdict against a multimillion-dollar demand in a Staten Island (Richmond County) personal injury matter. Mr. Whalen will also be starting a jury trial in the Southern District of New York next week, discussed in more detail below.

In New Jersey, the courts have attempted a mix of hybrid trials (virtual and limited in-person proceedings) during the pandemic and have been holding grand juries via Zoom since the spring of 2020. Unfortunately, with a further rise in COVID-19 cases, jury trials in both states were again put on hold over the winter. As a result, the trial calendar backlogs continue to grow.

Updated Virtual Programs for New York & New Jersey

a. New Jersey

New Jersey’s latest solution to this backlog has been a full return to virtual jury trials. Fortunately, since November 2020, the courts have been laying the foundation for such virtual proceedings, receiving comments and suggestions from several New Jersey Bar Associations. Then, on January 7, 2021, New Jersey’s Acting Administrative Judge Glen Grant announced a two-phase approach for implementing virtual jury trials while COVID-19 remains a factor. Phase One trials began in February in certain counties, and would be strictly voluntary. The objective is to start with simple cases, and to consider operational concerns for those cases not suited to a virtual format. According to Judge Grant’s Order, Samsung tablets will be provided to potential jurors and the model voir dire questions will be expanded. Currently, we are aware of at least one virtual jury trial that has been conducted so far in New Jersey.

Phase Two of this approach is expected to begin in April 2021. At that time, virtual jury trials will be expanded to all counties with no requirement of consent from the parties. This second phase is expected to last as long as necessary. We have been informed of numerous cases, many of them quite complex, for which notices have been sent for trial this spring.

b. New York

Back in New York, different approaches are being considered. Chief Judge Janet DiFiore recently stated in a weekly address that she hopes the court system will resume in-person trials with the state’s decreasing rate of COVID-19. Outside of New York City, it has been reported that civil and criminal in-person trials may resume in late March 2021. Jury summonses have been issued to eligible residents outside the five boroughs. As of now, there is no set date for when jury trials will resume in New York City.

Recently, Administrative Judge Norman St. Gorge of Nassau County, in consultation with the Commission on the Future of New York’s Courts, issued the updated "Virtual Bench Trial Protocols and Procedures." According to Chief Judge DiFiore, this document functions as a statewide manual to guide the bench and bar in conducting virtual bench trials and hearings during the pandemic and beyond. The protocols inform participants of what to expect during a virtual bench trial and address issues such as handling and presenting testimony, as well as documentary and physical evidence. There is also a section where the parties can agree on how different aspects of the trial will be handled by completing a proposed stipulation and order.

New York federal courts have been considering virtual and in-person jury trials. According to Eastern District judges, virtual jury trials are expected to start in the next month or two. On the other hand, the Southern District has already sent out notices for in-person trials. Indeed, Mr. Whalen has received notice and will be commencing a federal trial later next week. By all indications, the trial is expected to be held in-person. Other states, such as Washington and Texas, have also begun ordering virtual trials without consent of the parties being necessary to go forward. Washington, for example, noted that trial testimony of witnesses shall be taken orally in open court unless good cause or compelling circumstances provide otherwise. For now, states and courts have differed as to whether the pandemic counts as a good cause or compelling circumstance, so regardless of one’s jurisdiction, those facing litigation should assume virtual trials will be the norm for at least the next few months.

Lewis Brisbois’ trial attorneys are ready, willing, and able to handle any in-person or virtual trials in almost every state. With 48 trial attorneys across our nationwide network who are members of the American Board of Trial Advocates (ABOTA), we have one of the deepest trial benches in the nation and a wealth of experience conducting both virtual and in-person trials during this pandemic. Additionally, our technology team is available to assist as the situation with virtual bench trials continues to evolve.

For more information on our trial team, visit our National Trial Practice page.