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The Practice of Law After COVID-19, Volume 3

Elizabeth DiNardo, Esq. | Associate Counsel

Post COVID-19 Courtrooms: Breaking Down NJ’s Proposed Court Reopening

PostCovid_Litigation

As the nation continues to grapple with rising coronavirus infection rates, there have been recent developments in the reopening of the U.S. court system. On July 22, 2020, the New Jersey judiciary announced its plan to resume jury trials in September 2020. Many courts across the nation will look to New Jersey and its efforts to resume in-person courthouse appearances for guidance in reopening.

In a six-page announcement, the New Jersey judiciary (“the Judiciary”) unfolded its plans to reopen through a combination of in-person proceedings and remote jury selections, stating that waiting is not an option for litigants. Optimistically, the Judiciary says that it is aiming to have at least one civil and one criminal trial taking place at any particular moment in each New Jersey county once the courts reopen. While the logistics involved with court reopening are complicated, the Judiciary says it will replicate, to the greatest extent possible, pre-pandemic standards.

Below is a brief outline depicting how New Jersey courts plan to stage their reopening:

 

The plan for jurors:

To begin, voir dire will be done virtually and all case-specific questioning of jurors will be conducted by a judge in the presence of the attorneys and parties. Aware that not all jurors may have access to the necessary technology to successfully take part in virtual proceedings, the court has said that it will provide technology to jurors in all cases necessary. After the virtual questioning and “for cause” excusals are complete, a small group of jurors will be directed to physically report to the courthouse for the final phase of jury selection, including peremptory challenges. During this initial in-person process, masks will be worn and the Judiciary stresses that it will keep social distancing measures in place.

Once the jury selection process is completed selected jurors will be empaneled for what the Judiciary is calling a “socially distant in-person trial.” The Judiciary states that it will base its guidelines on CDC and New Jersey Department of Health recommendations. Specifically, proper social distancing will be maintained by pre-designating break rooms and restrooms in the courthouse for jurors.

 

The plan for attorneys:

Prior to the start of a trial, attorneys will be allowed into the empty courtroom so they can become accustomed to any new changes as a result of COVID-19. The Judiciary has included additional time for attorneys to review any proposed technological supports, such as newly added large-screen monitors that will be used to display evidence to jurors at a proper social distance. In addition, attorneys will review new health precautions, like new plexiglass barriers throughout the court. Such barriers will be used to protect witnesses and as dividers to enable attorneys and clients to exchange private notes and maintain client-attorney communications, while still adhering to virus prevention and containment guidelines.

The courts have also acknowledged the possibility that social distancing protocols may create practical issues for attorneys and jurors with regard to the ability to adequately hear the proceedings. To combat this issue, the Judiciary has suggesting that earbuds, similar to those used by interpreters, be used in the courtrooms.

It is important to note that New Jersey’s decision begin the judicial reopening process this September comes as federal courts in Arizona, Mississippi and Virginia announced further delays in their own reopening plans due to increased COVID-19 cases in each state. The Judiciary stresses that the success of its reopening process hinges on the continued cooperation of parties, jurors, attorneys and court staff. The State of New Jersey will lead by example and its results will help to shape guidelines for courts across America.

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