By Allison L. Westfahl Kong
Allison L. Westfahl Kong is a federal prosecutor in Los Angeles. Any views expressed are her own, and do not represent the position of the U.S. Attorney’s Office or the U.S. Department of Justice.
On September 1, 2021, the Federal Courts Committee of the California Lawyers Association and the Federal Bar Association’s Sacramento, San Joaquin, San Diego, Los Angeles, Orange County, Inland Empire, and Northern District of California chapters hosted a webinar about COVID’s continuing impact on federal court operations.
The webinar featured four distinguished panelists representing all four federal districts in the state: U.S. District Court Judges Anthony J. Battaglia (S.D. Cal.), Beth L. Freeman (N.D. Cal.), Philip S. Gutierrez (C.D. Cal.), and Kimberly J. Mueller (E.D. Cal.). Mariam Kaloustian, an Assistant United States Attorney in the Civil Division of the U.S. Attorney’s Office for the Central District of California, introduced the four panelists, and Chi Soo Kim, the Executive Assistant United States Attorney of the United States Attorney’s Office for the Eastern District of California, moderated the discussion. Over 200 people registered to attend, representing a broad section of the bar across the state, including judges from the district court, bankruptcy court, and state superior court.
The Status of Jury Trials
The judges first discussed the status of trials and updates since the last four-judge webinar, which was held in March, as two districts (the Central District of California and the Eastern District of California) had not resumed trials at that point. Speaking for the Central District of California, Chief Judge Gutierrez noted that trials resumed in May in the Southern Division (Santa Ana) and in June in both the Western Division (Los Angeles) and Eastern Division (Riverside). Since that time, the Central District has tried 51 jury trials (24 civil jury trials and 27 criminal jury trials) and 27 bench trials (26 civil bench trials and 1 criminal bench trial).
Turning to the Eastern District of California, Chief Judge Mueller indicated that while the district was prepared for trials to resume in the May/June timeframe, once parties saw firm trial dates on the calendar, the cases often resolved. In terms of actual trials, Chief Judge Mueller indicated that she currently is presiding over a trial and that one of her colleagues in Fresno has a trial very soon. The district has also held a handful of civil bench trials using Zoom.
Addressing the Northern District, Judge Freeman noted that trials began in March, albeit with significant restrictions, including stringent limitations on the number of people in the courthouse at any given time and strict social distancing. The district relaxed standards in June/July and stopped issuing a COVID questionnaire with jury summonses, noting that when the questionnaire was issued, the yield was very low, with only approximately 150 jurors showing up for every 1000 summonses, thus limiting the number of trials that could be held. Because the infection rate was declining, the district was able to eliminate the questionnaire and then saw a higher yield of jurors. While this allowed each division to increase the number of trials at any one time, each division continues to hold just one jury selection at a time. Starting in mid-July, the district again became more restrictive given rising COVID cases. While many of the judges are willing to do bench trials on Zoom or in person, there has not been a big audience for Zoom trials, so it is not a significant part of what the district has done.
As to the Southern District of California, Judge Battaglia noted that like the Northern District, the Southern District began trials in March under various restrictions, including that jury selection would only take place in large courtrooms. Starting in July, the district resumed doing civil trials (though, as expected, many cases immediately settled) and stopped issuing COVID questionnaires. The district still had a good yield of jurors with the COVID questionnaires, but it became less important to ask those questions as COVID cases decreased. As for limits on trials, the district is limiting in-custody criminal cases to five at a time, not because of any courthouse restrictions, but because of limitations of the U.S. Marshal Service and custodial facilities. The district has returned to picking juries in the courtrooms in traditional fashion and having jurors sit in the jury box as opposed to the gallery, though it does require jurors to wear masks except during voir dire. Finally, Judge Battaglia noted that his district is focused on in-person jury trials, as the Chief Judge has issued a rule that there will be no video jury trials in civil cases.
COVID Precautions and Safety Measures
The panelists then addressed COVID precautions and safety measures employed by the various districts. Judge Freeman indicated that in the Northern District, while there are suggested protocols, each individual judge can set his or her own protocols. The district does control the number of people in the courthouse, the elevators, and the jury assembly rooms, but the protocols in each courtroom are up to the individual judge. The district is currently requiring that masks be worn indoors, though it previously gave vaccinated persons the option to remove their masks. Judge Freeman remarked that when she presided over a trial in early July, she didn’t require vaccinated people to wear masks indoors, but due to worsening COVID conditions, for her trial starting next week, she is going to require everyone to wear masks unless the lawyers are speaking. She noted that in some cases, the lawyers have agreed to only have vaccinated jurors. She hasn’t personally done that and suggested that it would be difficult to require jurors to be vaccinated absent agreement from the parties. As to where jurors sit in the courtroom, Judge Freeman gives jurors the option of being spaced throughout the gallery or in the jury box, though she noted that lawyers prefer having them in the jury box. In her last trial, she noted that 10 jurors opted to be in the jury box, with 5 choosing to be more distant. She noted that precautions may change day to day depending on the infection rate, adding that while the bay area has a highly vaccinated population, infections are still rising.
Addressing precautions in the Central District of California, Chief Judge Gutierrez said that the district had a very similar practice to what Judge Freeman described, but he noted that the Central District has four different courthouses so there may be different practices in each courthouse. Much like the Northern District, COVID precautions were more relaxed in June and then became more restrictive in response to the Delta surge. Currently, the district sets limits on how many trials can take place at once, though it is possible to have as many as six trials in the district. In any given week, there can be two trials in the First Street Courthouse in Los Angeles, one trial in the Roybal Courthouse in Los Angeles, two trials in the Santa Ana Courthouse in Orange County, and one trial in the Riverside Courthouse. Most judges in the First Street Courthouse are doing voir dire in the large ceremonial courtroom, but after juror selection, the trial itself takes place in the judge’s courtroom, with some jurors seated in the jury box and some in the audience. As to mask-wearing, in Chief Judge Gutierrez’s first trial, he permitted people to remove their masks if vaccinated, but has now changed his practice, requiring everyone to wear masks regardless of vaccination status.
Judge Battaglia noted that in the Southern District, the judges also have individual practices. Generally speaking, masks are required for anyone who is not vaccinated, and witnesses generally wear masks except when testifying. The district has also made use of clear masks, both for witnesses and for jurors during voir dire so their demeanor can be assessed. Judges in the Southern District do not inquire of jurors’ vaccination status. As long as counsel are vaccinated, they may speak without a mask. They must stand at the podium for voir dire, opening, closing and witness examinations, which allows for distance and better airflow. Judge Battaglia noted that the district is blessed with a very high-tech air filtration system so that fresh air flows into courtrooms – something they advertise to jurors in advance to help them feel more comfortable. While there are no longer any limits on the number of trials that can be held, the court does need to limit how many in-custody defendants can be brought over for trial given limitations of the U.S. Marshals Service and the Bureau of Prisons.
Turning to the Eastern District of California, Chief Judge Mueller observed that each district must consider its geographic landscape. She noted that the Central Valley has one of highest rates of infection and death and that its emergency rooms are overrun. Because of this, the Eastern District judges are uniform in being cautious and currently require full masking (consistent with what the superior courts in the area are doing). Even though she permitted people to remove masks when speaking in a prior trial, she currently requires full masking. She advised litigants to be prepared for a range of practices, including very conservative practices from judges who are concerned about outbreaks. She also suggested that practitioners think in advance about whether masks will need to be removed at any given point (or whether any other protocol needs to be adjusted given case-specific needs) and to propose a protocol to the judge in advance in a motion in limine or other filing. For example, witness identification is something that cannot be done with masks. One solution is to require all persons who are not jurors or court staff briefly remove their masks when a witness is asked to identify someone in court. In addition to masking, the district requires social distancing, and all courtrooms have gloves, Plexiglas stands, and disinfectant. To allow public access, the district sets up an adjoining courtroom with a video feed.
Judge Battaglia echoed Chief Judge Mueller’s point about witness identification and noted that he has had success in getting parties to stipulate to identity in noncontroversial cases to avoid the issue, but absent a stipulation, he agreed that “masks have to drop.” He added that beyond the identification issue, litigants should always be stipulating to things that aren’t controversial to move the case along.
As to witness identification procedures in the Northern District, Judge Freeman noted that in her upcoming trial, the parties have agreed that for a brief moment, everyone who is not a juror will remove their mask for the identification. She is still undecided as to whether witness can testify without masks and the lawyers haven’t brought it up, so she might require masks for everyone, including witnesses. She also noted that she has a case coming up where the defendant herself is not fully vaccinated and will be wearing a mask, so she is inclined to have everyone wear a mask so as to not draw attention to the defendant, perhaps with a few exceptions when people have to speak for extended periods of time.
As to whether witnesses must wear masks, Chief Judge Gutierrez noted that for his upcoming trial, he probably will permit witnesses to testify without masks, though he noted it could be difficult to ask a witness to take off his or her mask off if the witness is uncomfortable, so he may also explore whether to use face shields. He noted that a common theme of this panel was to be flexible and to expect that things will take more time as everyone is trying to be cautious. He noted that problems come up in almost every trial and the key seems to be slowing down so everyone can carefully walk through the issues and come up with solutions.
COVID Exposures and Related COVID Issues During Trial
The judges were then asked about COVID exposures during trial. Chief Judge Gutierrez commented that the Central District has had a trial where a juror testified positive for COVID over a weekend. The district did contact tracing over the weekend and learned that all other jurors were vaccinated and had been socially distanced and masked. They also learned that the juror who had tested positive had close contact with just one other juror, who she had lunch with. Following the contract tracing and in accordance with CDC guidelines, the trial was able to resume on Wednesday of the next week. Chief Judge Gutierrez also noted that in his own first criminal trial, he lost all of the alternates on the first day. Fortunately, he didn’t lose any other jurors so six days later, all jurors were deliberating and the case came to a conclusion. Based on this experience, he noted that when conducting trials during COVID, in addition to taking precautions, you need to have some luck.
Chief Judge Mueller observed that there is a high likelihood that something COVID-related will happen during a jury proceeding. A member of the jury panel could learn that someone in the juror’s household has tested positive for COVID or a defendant in custody may either test positive for COVID or be exposed to someone with COVID. So far, the Eastern District has been able to bring all of its jury trials to conclusion, but she noted that if COVID exposure occurs, a long pause in the proceeding may be necessary. She also noted that judges would be wise to pick additional alternates. Because of the risk of COVID exposure, the Eastern District has now adopted the Southern District’s practice of using clear masks for witnesses. When witnesses approach the witness stand, they are asked to change into clear masks provided by the court. The masks are not comfortable and are expensive, but they do allow the jurors to see the witnesses. Because of the expense, the district only uses the masks for witness testimony and not for jury selection.
Addressing COVID exposure in the Northern District, Judge Freeman noted that there may be more flexibility in the context of a civil jury trial than a criminal one. In the criminal context, if the defendant is exposed to COVID, that defendant will have to be quarantined. However, in a civil jury trial, if the witness is not actually sick but has to quarantine, that witness can testify remotely during a live trial. She noted that even in a criminal trial, if the issue is with a witness rather than the defendant, as long as the parties agree, a witness can testify remotely, noting that she recently had a witness in a criminal case testify remotely, as the witness lived in China, which has very strict quarantine rules.
Speaking for the Southern District, Judge Battaglia noted that they’ve been lucky in that COVID-related issues have been minimal, which he attributes to preparation and attention to detail. He agreed that considering Zoom testimony for quarantined witnesses and picking additional alternates are both good ideas. He also noted the importance of discussing COVID-related issues in advance with the trial judge at the pretrial conference and studying that judge’s specific rules. He suggested that another practice that has been really helpful is the use of digitized evidence, as there is no need to approach the witness and everything is on the screen.
Civil Trials – Bench Trials and Zoom Proceedings
The judges then addressed civil trials and whether civil litigants were opting to have either bench trials or Zoom trials. Chief Judge Mueller noted that while the Eastern District has offered Zoom trials to civil litigants, there is not much appetite for it, though she noted that the district continues to hold civil scheduling conferences and final pretrial conferences by Zoom. She also noted that magistrate judges regularly hold settlement conferences over Zoom and that they are very effective.
Judge Battaglia noted that in the Southern District there have been several civil bench trials and that the bankruptcy court has held “nonstop” bench trials over Zoom. Still, he noted that for the most part, the civil trials are in person.
Chief Judge Gutierrez echoed that there hasn’t been much appetite for Zoom bench trials, noting that there have been 26 civil bench trials with only 2-3 occurring over Zoom. The district has had 24 civil jury trials over last few months, most commonly in Santa Ana and Riverside. In Los Angeles, priority is given to criminal trials so if there already are two criminal cases set for a given week, there may be a backup civil jury trial, but it can only go if one of the criminal trials settles.
Judge Freeman noted that in the Northern District, while trials have never been limited to criminal trials only, there is a very objective standard for which cases go first. Priority is first given to trials with in-custody defendants, then to criminal trials with out-of-custody defendants, and then to civil trials. Within each of those groups, the oldest case goes first. Even with civil trials being lowest priority, the district has had a number of civil trials, including antitrust trials, civil rights trials, and patent trials.
Case Backlog and Judicial Vacancies
Addressing the backlog of cases due to COVID, Judge Freeman noted that she believes she will clear her backlog by early next year, but observed that every judge’s backlog is different, and some judges haven’t yet been comfortable holding trials.
Addressing the backlog in the Central District, Chief Judge Gutierrez observed that the backlog is not necessarily COVID-related, noting that the real issue is judicial vacancies, with six vacancies in the Southern District, six in the Central District, three in the Northern District, and two to three in the Eastern District.
Chief Judge Mueller echoed Chief Gutierrez’s comment about vacancies and also noted the desperate need for more judgeships. She observed that the Administrative Office of the United States has identified the Central District and Eastern District as two of the six districts with a longstanding crucial need for more judgeships. Even if vacancies are filled, she stated that the Eastern District needs at least five more judgeships to have a bench that can truly serve the 34 counties in Central Valley as the population has more than quadrupled with no increase in the number of judgeships. She noted that the Central District has a similar dire need for more judgeships.
Practices That Will Continue Post-COVID
Addressing practices that will continue when the pandemic is behind us, Judge Battaglia noted that the court will continue to make use of technology and digitized exhibits during trial, as trials move more quickly, the exhibits are viewable on the screen, and there is no need to sort through binders. And while there isn’t much appetite for video trials, he expects there will continue to be video hearings in the ADR field, as settlement conferences over Zoom have been very effective.
Chief Judge Mueller agreed that settlement conferences over video will continue, noting that they are especially convenient when the parties live far away. She also may continue to have initial scheduling conferences in civil trials over zoom. Even after the pandemic, she said she will consider doing video hearings where there is a hardship request, and if the parties are agreeable to having witnesses testify via video, she is open to taking testimony via video, particularly for witnesses who live in other countries.
Chief Judge Gutierrez noted that in addition to continuing video hearings for ADR and continuing the use of digital evidence, courts are trending away from paper in general, so he expects that everything will be increasingly paperless even after COVID. He added that video technology has really assisted pro se litigants, as you can more easily reach people you couldn’t get to before, including people who would have difficulty getting to the courthouse and paying for parking. He noted that there still is a digital divide as some people don’t have access to internet but access is improving and the video technology increases access to justice, as a pro se litigant can receive assistance from lawyers in different states.
Judge Freeman agreed that settlement conferences are extremely effective via video, noting that it enables higher level decisionmakers to attend on the Zoom platform without having to travel. She also suggested that video hearings are beneficial in for routine case management conferences for civil cases and for status conferences in criminal cases involving out of custody defendants, as the defendants don’t have to take the entire day off work and can join the hearing on their breaks. She does expect we’ll return to having final pretrial conferences and jury instruction conferences in person. She noted that most judges in her district have used digital exhibits for a while, but they are not a panacea as technology does fail, so having a set of paper exhibits as a backup may still be necessary.
Judge Battaglia, who chairs the Ninth Circuit’s Jury Trial Improvement Committee, noted that expanding the use of video court proceedings is a very big topic. He explained that the Zoom format for status conferences and other proceedings can also be great for junior associates, as it is easier for them to attend and observe. It can also be good for status conferences in massive cases with lawyers from all over the world. Still, there are a lot of hearings that are better done in person. There is a lot of conversation about broadcasting proceedings to the public, but that is a tougher issue.
Best Practices for Zoom Hearings
Chief Judge Mueller noted that the most important thing is that litigants treat Zoom hearings as they would in-person court hearings. They shouldn’t wear Hawaiian shirts or act casually. They need to take it seriously and treat her like a judge. She noted that attorneys should also think about whether they will sit or stand. Most attorneys are sitting, which is okay, but it may lead lawyers to talk for longer than they otherwise would. So attorneys should be mindful of the need to keep their presentations concise even if they are comfortably sitting down and have easy access to their notes. Chief Judge Mueller also advised that attorneys pay attention to the record and the needs of the court reporter. Attorneys should wait for the judge to call on them and should not speak over others – for the sake of the court reporter and for the record.
Judge Freeman agreed with Chief Judge Mueller that the most important thing is to appear and act as though you’re in the physical courtroom. Litigants should wear proper attire and be mindful of their surroundings (laundry strewn about, unmade beds, dogs barking in the background). She recently told a lawyer who was dressed inappropriately that she would hold hearings in the courtroom if he didn’t dress appropriately for virtual hearings. Notwithstanding occasional issues with attire and background settings, Judge Freeman noted that lawyers have consistently done an excellent job being prepared on the merits. Even when she was only holding telephonic hearings in the first couple weeks of the pandemic, she was very impressed with the “intellectual rigor” that was still coming through.
Chief Judge Gutierrez offered many of the same tips as his colleagues. He noted that he personally has been doing Zoom hearings from Chambers because of distractions at home – gardeners blowing leaves, family members watching Netflix (thus slowing down the internet connection and making it easier for a hearing to be dropped), and people talking on cell phones. He talked about the importance of controlling your surroundings and presenting professionally.
Judge Battaglia noted that in general the lawyers have performed very well, but discussed the importance of knowing the technology. He suggested that if you’re not savvy with technology – such as screen sharing – consider having a colleague assist, or, better yet, have a junior colleague handle the argument. He added that many courts have rules that encourage younger lawyers to argue, noting that it is his practice to guarantee a hearing (even for matters that would otherwise be taken under submission), if a more junior lawyer is going to be arguing the motion.
Opportunities for Public Viewing of Trials and Court Proceedings
The judges also addressed how the public can view trials and court proceedings. Chief Judge Mueller noted that in the Eastern District, they are not broadcasting proceedings so public access is achieved with a phone line. She noted that if junior attorneys wish to watch their colleagues handle Zoom proceedings, they should communicate to the courtroom deputy in advance so the CRD knows to let them into the virtual courtroom. For trials, they generally use a separate courtroom with a live video feed, and for cases of great interest, more than one courtroom. There may also be some room for public seating at the back of the gallery, but some jurors may also be seated in the gallery, behind yellow tape to indicate a clear delineation between the jurors and the public.
Judge Freeman stated that in the Northern District, the public similarly gets audio access through a phone line. As for trials, members of the public generally have to come into the courtroom where the trial is occurring as there is usually at least one row in the back of the courtroom for public access. She noted that the district doesn’t have space for an extra courtroom with a video feed – particularly since the jurors use an extra courtroom for breaks – but noted that they might set up a separate courtroom with a video feed for a high-profile case.
Turning to the Central District, Chief Judge Gutierrez noted that the district regularly uses overflow courtrooms for public viewing, but not necessarily for every case, especially where the jurors are seated in the jury box. For two high profile cases, the district set up two overflow courtrooms. He noted the need for an overflow courtroom is greater in a criminal case than in a civil case because there are more jurors in a criminal case. (Both Chief Judge Gutierrez and Chief Judge Mueller also noted that the reason their districts can use overflow courtrooms is because they have many empty courtrooms in light of judicial vacancies.)
Speaking for the Southern District, Judge Battaglia explained that when the district first started doing trials, they set up a video feed in an adjacent courtroom and an audio feed over the phone. However, the district now no longer needs a separate courtroom except for cases of special interest. Judge Battaglia also addressed potential broadcasting of court proceeding, noting that the judicial conference still disallows public broadcasting but that the public should stay tuned as pilot projects are in the works.
Timeline for Resumption of Normal Court Operations
When asked about a timeline for the return to normal court operations, none of the judges offered a prediction. Chief Judge Gutierrez remarked that he can’t predict anything as he doesn’t even pretend to understand COVID and just when he thinks everything is under control, a new problem arises.
Judge Battaglia agreed that it was a “moving target” and said the courts have learned a lot and will continue to be nimble. He said he will pray COVID goes away and thanks the lawyers for their patience and cooperation.
Chief Judge Mueller noted that even if the Delta variant moves through the system by December, there could be other variants or serial variants and if there are variants, we may be in this mode for the long haul. Still, she commented that at least with vaccinations and safety protocols, she knows she can try cases. She hopes next year, this will all be behind us, but only time will tell.
Judge Freeman agreed that she doesn’t have a crystal ball and all we can do is hope this turns a corner.
When asked for final thoughts, Judge Freeman noted that lawyers and judges have been more adaptable than we thought, ensuring that we serve clients and litigants and work to make sure we’re not denying justice. She also extended her gratitude to the lawyers’ willingness to help the courts move cases along.
Chief Judge Gutierrez said, “All of us have to be nimble, all of us have to be patient, all of us have to be kind.” If we all do those things, we’ll be able to move forward in a way that is civil.
Judge Battaglia and Chief Judge Mueller echoed Chief Judge Gutierrez’s slogan, with Judge Battaglia noting that “we are all in this together,” and that we need to continue to work to ensure justice in the safest manner we can achieve with our resources. Chief Judge Mueller advised litigants to come to status conferences and pretrial conferences with constructive solutions to problems posed by COVID, noting that the judges will listen and welcome your input even if they don’t ultimately agree. She also reinforced the judicial infrastructure problem, noting that even when COVID is behind us, the need to fill judicial vacancies and create judgeships is a very serious issue in California.
 A writeup of that webinar can be found here: https://calawyers.org/litigation/report-on-the-committees-recent-webinar-covid-19s-impact-on-federal-court-operations/.