On March 25, 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-19’s 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.), Philip S. Gutierrez (C.D. Cal.), John A. Mendez (E.D. Cal.), and William H. Orrick (N.D. Cal.). Chi Soo Kim, the Executive Assistant United States Attorney of the United States Attorney’s Office for the Eastern District of California, introduced the four panelists and Mariam Kaloustian, an Assistant United States Attorney in the Civil Division of the U.S. Attorney’s Office for the Central District of California, moderated the discussion. Over 250 people registered to attend, representing a broad section of the bar across the state, including judges from the district court, bankruptcy court, and administrative courts.
The judges first discussed how Covid-19 has affected court operations in their respective districts. Judge Orrick noted that the Northern District of California (like many other districts) has largely closed the courthouses, relying heavily on virtual hearings conducted over Zoom. He noted that Zoom has allowed most cases to proceed as normal, except of course for jury trials. Only five or six criminal trials have been held in the Northern District since the pandemic began and only in cases involving detained defendants who did not waive time under the Speedy Trial Act.
Speaking for the Eastern District of California, Judge Mendez noted that the courthouses have basically been closed since March of last year and the district has not had any criminal or civil trials. Courts have held some hearings on supervised release violations, but almost everything else has happened by Zoom. The judges have continued all criminal trials, excluding time under the Speedy Trial Act. (Judge Mendez noted for the benefit of criminal practitioners that some cases raising speedy trial issues are on appeal and that he expects a decision from the Ninth Circuit soon.)
Chief Judge Gutierrez noted that the Central District of California has similarly suspended criminal jury trials and that the district has not held any jury trials since the pandemic began last year, though jury summonses have been sent out for trials in the district’s Southern Division (representing Orange County) so some trials may begin as early as May 10. He further observed that at least on the civil side, with the exception of jury trials, everything has been moving forward thanks to Zoom.
Turning to the Southern District of California, Judge Battaglia explained that the district did not close entirely as others have and that it held many jury trials between August 2020 and the end of 2020, at which point trials were again suspended as Covid-19 numbers surged. As of early March, the Southern District has again been holding jury trials and has had great success with its operational plan. The plan is to hold three trials per week from now until May, with the hope of expanding that number in June.
In discussing what has worked during the pandemic, all four judges praised the advent of Zoom hearings, with Judge Orrick observing that Zoom hearings are efficient and manageable and that it is nice to be able to look at things over video and study them, particularly for patent cases. Chief Judge Gutierrez noted that he found claim construction to be difficult over video, but generally agreed that, especially on the civil side, Zoom hearings work very well. All judges acknowledged, however, that managing criminal cases over Zoom was more difficult. Judge Orrick, Judge Battaglia, and Chief Judge Gutierrez singled out criminal sentencings and change of plea hearings as hearings that are better done in person, with Judge Battaglia noting that in-person sentencings and change of plea hearings are “the gold standard.” Judge Mendez noted that for criminal matters generally, it is helpful for defense counsel to be right next to their clients during hearings (rather than appearing from separate locations over Zoom). He observed that another challenge has been the difficulty of in-person meetings between defense attorneys and defendants due to visitation restrictions at detention facilities, noting that, at least in Sacramento, there were long periods of time where defense attorneys were not permitted to meet with detained clients in person.
Given the advantages of Zoom, the judges were asked whether courts will continue to offer virtual platforms for hearings even after the pandemic. Judge Orrick remarked that he hoped so (particularly given the millions of dollars it has saved in the Northern District alone), but acknowledged that it’s very much an open question. Judge Mendez similarly would like to see continued virtual hearings, particularly given how efficient they are on the civil side, but suggested this was a question for decision-makers in Washington D.C. due to budgetary reasons.
Turning to the backlog of cases and jury trials created by the pandemic, the judges discussed how trials will be prioritized, with Judge Orrick observing that on the criminal side, priority would be given to trials involving in-custody defendants and that in civil cases, priority would be given to the oldest civil cases. The judges agreed that the speed at which trials resume will depend on several factors that may be out of the courts’ control. Judge Orrick mentioned space considerations – whether there are large enough courtrooms to socially distance jurors – and jury considerations – whether enough jurors show up in response to summonses. Judge Mendez added that, at least in the Eastern District, the speed at which trials resume may depend on whether judicial vacancies are filled, noting that the Eastern District is a six-person court that now only has four active district judges: three in Sacramento and one in Fresno. The judge in Fresno has already sent out standing orders indicating to the civil bar that with 2,000 cases pending in Fresno and 700 to 800 criminal cases, there likely will not be any civil trials in Fresno this year unless the judicial vacancies are filled.
Chief Judge Gutierrez noted that the Central District has three different divisions and that the Southern Division (representing Orange County) will start holding trials on May 10 (seven weeks from the date jury summonses went out). He anticipates that this division can hold two to three trials per week, noting that criminal trials will have priority and that trials with in-custody defendants will be prioritized over cases with out-of-custody defendants. He did suggest that this doesn’t mean civil trials won’t happen and that he hopes that if there are last minute guilty pleas, the jurors who were going to be used in those criminal trials could be used in civil trials, noting how important it is that we not waste jurors. As for the Western and Southern Divisions, he suspects that trials will resume in the middle of June. The Western Division has two courthouses – the First Street Courthouse and the Roybal Courthouse – so the hope is that every week two trials can be conducted at First Street and one in Roybal. He noted that the Central District has 758 criminal trials set for this calendar year.
When asked whether jurors will be excused if they are not vaccinated, the judges indicated this was an open question. Chief Judge Gutierrez explained that the Central District will include Covid-19 screening questions in the jury summonses, but it has not decided whether to inquire about vaccinations. Judge Battaglia expressed caution about screening out jurors at the summons phase based on Covid-19 related circumstances, noting the importance of running these issues by the parties and that, at least in criminal cases, defense counsel may want to make arguments about how the jurors do not represent a fair cross-section of the community. He further observed that even before vaccinations, the Southern District has held trials safely by taking various precautions, though he acknowledges that the ability to hold trials will vary from district to district and depend on various factors, including the community infection rate, the space you have, and the resources you have.
The judges also addressed various safety protocols that have been implemented during the pandemic. Judge Battaglia discussed jury trial precautions, including mask-wearing, placing limits on the number of people who can be in the courtroom, requiring lawyers to stay seated except during opening and closing arguments, eliminating sidebars, distancing the jurors in the courtroom and, depending on the setup, possibly seating jurors in the gallery. To accommodate members of the public who wish to observe the trial, Judge Battaglia noted that his district has added a video viewing room, where the trial is broadcast to another courtroom. He noted that the Southern District surveyed all jurors who participated in trials and in voir dire and that the feedback has been very good, with jurors expressing appreciation for precautions. He remarked that jurors are very resilient, understand their duty, and will embrace their duty if the courts take care to make the process as safe as possible.
While the Covid-19 protocols are no doubt important, Judge Orrick observed that there are downsides. At least in the trial he had, the jury did not seem to bond in the same way a jury typically would because the jurors were all wearing masks and were seated at least six feet apart. As a result, he believes jury deliberation took a little longer in his case than in the typical case where jurors can get to know one another even before deliberations. He also found that in certain cases, the lawyers hadn’t familiarized the witnesses with the transparent face masks that would be used, so the first two witnesses put them on upside down. As with anything, Judge Orrick noted the importance of advanced preparation and being familiar with the technology and the masks.
When asked about best practices for virtual hearings, the judges all agreed that one of the most important things for litigants to remember is that they are still in federal court. Lawyers should show up in a suit, be familiar with the technology, do a test run in advance, and sign in for the hearing early so that it can start on time. Judge Orrick advised that attorneys be understated as Zoom can exaggerate over the top personalities. Judge Mendez noted that he preferred live backgrounds over virtual backgrounds, noting strange effects when lawyers move in front of a virtual background. And while noting that he likes dogs and kids, Judge Mendez recommended that lawyers lock their office doors so dogs and kids do not enter during the hearing (as you would not bring your dogs or kids to court). In addition to emphasizing the importance of maintaining formality, Chief Judge Gutierrez would urge counsel not to just read off their notes during hearings. Judge Battaglia added that if counsel plan to use exhibits or PowerPoints, they should familiarize themselves with the screen-sharing function in advance and should circulate the slides or exhibit deck in advance, in case the video technology doesn’t work as planned.
When asked for final thoughts, Judge Orrick noted that things are getting better, that this too will pass, and that the backlogs will get shorter over time. He urged everyone to be kind to opposing counsel and to the court staff that is working so hard to get things off the ground. Judge Mendez asked for patience, especially with the Eastern District, noting that the Eastern District doesn’t have the same resources as the other districts and that they only have four active judges and three senior judges. Chief Judge Gutierrez and Judge Battaglia both echoed Judge Mendez’s statement that each district is different, with Judge Battaglia observing that courts cannot control the resources they have, the disease rates in their communities, or the public’s response to jury summonses, and that every district is making the most of what it has. Chief Judge Gutierrez said that perhaps one of the only good things to come out of this pandemic is that people have developed patience – patience when picking a jury, patience when technology fails, etc. – and he hopes we continue to be patient even as we come out of the pandemic. Judge Battaglia agreed and lauded how collaborative lawyers have been – agreeing on many things in advance, including exhibits so they can be digitized. He hopes the collaboration and collegiality will continue.