In a trend emerging across the country, many courts are responding to the Omicron surge by returning to remote proceedings in the name of health and safety. The fact that the requirements vary by district, circuit and area of the country as well as the evolving nature of this newest turn in the pandemic has forced practitioners and parties to practice flexibility and pivot yet again in the wake of this virus.

Pandemic related closures resulted in a substantial backlog of cases, which the courts began to tackle with varying degrees of success following the implementation of safety protocols with Covid top of mind. These protocols continue to develop, but of late have taken new shapes as the variant mutates providing a corresponding change for courts tackling hearings and trials throughout the nation.

“We have tried many cases to verdict during the pandemic masked up, physically distant with a myriad of safety protocols,” said trial lawyer Greg Amundson, partner with Wood, Smith, Henning & Berman. With over 100 trials to verdict, Amundson opined about the additional time required just to empanel jurors. “Trial times are definitely extended, and the capacity of some courtrooms to accommodate large trials are strained. It starts with jury selection which is effectively taking three to four times longer due to unusually high hardship claims by jurors coupled with limited juror response to trial subpoenas. All told, this means trials are stacking up and taking much longer to resolve.”

“One of the silver linings of the pandemic will be opportunities to allow remote testimony, an emerging trend that is already taking shape around the nation,” said partner Maggy Mazlin, trial lawyer in the New York office of WSHB. “This development will provide savings of time and costs associated with travel for that category of witnesses which can be easily transitioned to virtual.”

Those with trials on the horizon have noted the emerging trend which is closely following the surge of the Omicron variant around the nation.

California Law Regarding Remote Proceedings Went into Effect January 1, 2022

California recently enacted a statute outlining how to handle remote proceedings, which courts in the state are using as a guide amid the Omicron surge and the renewed need to close or limit in-person proceedings. California Code of Civil Procedure section 367.75 addresses the rules and procedures for parties who wish to appear remotely in non-evidentiary proceedings as well as laying out the requirements and limitations for remote appearances in evidentiary hearings and trials. It became effective January 1, 2022.

The main points of this bill are below:

  • A party or witness may appear through the use of remote technology in all civil cases (other than juvenile dependency) after providing notice to the court and all other parties.
  • After receiving notice or request for a remote proceeding, the court has the discretion to require an in-person proceeding only if:

1) The court does not have the technology required to host a remote appearance.

2) The court determines, on a hearing-by-hearing basis, that the in-person presence of a party or witness would “materially assist in the determination” of the proceeding, or in the management or resolution of the case.

  • At a particular conference, hearing, or proceeding, the quality of the technology or sound is preventing or inhibiting any of the following:

1) The court’s effective management or resolution of the matter.

2) The court reporter’s ability to make an accurate record.

3) Counsel’s ability to provide effective representation; or

4) An interpreter’s ability to provide language services.

  • For evidentiary hearings or trial generally:

1) The court, as well as a party, may decide to conduct a trial or evidentiary hearing remotely; and

2) A party may oppose that decision by a court or another party by showing why remote testimony or appearance should not be allowed.

  • Section 367.75(k) states that the Judicial Council must adopt rules that address the following:

1) Deadlines for parties to request a remote proceeding.

2) Procedures and standards to guide judicial officers as to when a proceeding may be conducted through remote technology bearing in mind the limited access or transportation and other potential limitations or unequal circumstances of the parties and witnesses.

Additional Measures Instituted by Some California Courts Due to Omicron

Due to the surge of cases in recent weeks, several counties in California have issued special interim rules for appearances. On December 30, 2021, Orange County’s Superior Court issued a letter outlining interim procedures to be followed during the Omicron surge which included the following:

  • Non-evidentiary hearings will be conducted remotely.
  • Evidentiary hearings and trials will take place in person.
  • Pursuant to the requirements of C.C.P. 367.75, the “doors will be open” even during remote sessions for those who wish to exercise their right to appear in person.

The Orange County courts are implementing these interim procedures in an effort to maintain the efficiency of the court while at the same time protecting the health and safety of all parties and the public. The court also developed a Remote Appearance Information Page, which is found at Orange County courtrooms have been outfitted with additional cameras to ensure that everyone participating, whether in person or remotely, is able to fully engage in the process.

The Appellate Division of the Orange County courts also issued an Appellate Davison Administrative Order No. 21/01 on December 30, 2021, regarding videoconferencing. It contains an order that all oral arguments be held via Zoom videoconference. This order is effective immediately per Presiding Judge, Nathan Scott.

Other California counties such as Los Angeles and Riverside have also implemented temporary remote procedures in an attempt to curb the spread of Omicron in their communities. For example, Los Angeles County has suspended jury trials for two weeks from January 5, 2022 through January 19, 2022. In addition, federal jury trials in Los Angeles, Orange County and Riverside are now suspended for at least the next three weeks. Although these suspensions will exacerbate the already deep backlog of cases in the system, the courts feel that the greater goal of public health must dictate their actions during the current Omicron surge.

Courts Around the Country Respond in a Similar Fashion

Several circuits around the country are following suit. Many have cancelled in-person proceedings as COVID cases spike across the nation. Georgia Judicial Circuit Chief Judge Rob Leonard posted on Twitter that jury trials would pause for the next three weeks as case numbers are increasing sharply throughout Cobb County. In fact, the 2nd, 4th, 7th, 9th and 10th Circuits will all hold arguments remotely during the month of January. The U.S. District Court for the District of Columbia cancelled jury trials entirely until at least January 24th. It is likely additional circuits may take similar precautions in coming days.

The Impact of Delayed Jury Trials

As COVID rears its ugly head once again and the Omicron variant sweeps through all regions of the country, it is uncertain what will happen this winter and beyond as far as in person proceedings and jury trials are concerned. Although most courts have focused on the month of January for delays and closures, many are keeping open the option that the interim measures may need to be extended dependent upon the status of the viral spread in their communities.

It is paramount to remain apprised of the current requirements in place for court systems across the country. The attorneys at Wood, Smith, Henning and Berman are fully informed and ready to assist clients and interested parties on developments on this front. Please do hesitate to reach out should you require additional direction.

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