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Federal courts are beginning to open their doors for certain socially-distanced proceedings, including grand juries. However, the postponement of jury trials remains indefinite, and some federal courts are proceeding more cautiously than others. For example, a federal judge in Washington suggested they may not have jury trials until 2021. While the Administrative Office of the U.S. Courts have issued guidelines for reopening, courts are approaching the matter piecemeal. Questions about fairness, particularly in criminal trials, as well as the safety of those in the courtroom make it difficult to anticipate when jury trials will begin again. We're still a ways off from “back to normal."
While federal courts are managing as best they can, there is an open question of whether certain rule changes could help mitigate some of the issues that have occurred in the wake of the pandemic. To that end, the Committee on Rules of Practice and Procedure, part of the Judicial Conference, invited attorneys and the public to comment on possible rule changes that could limit the impact of future emergencies on the court system. Congress directed the Judicial Conference to consider such rule changes in the CARES Act. The Committee invited comments for civil, criminal, and bankruptcy courts. Comments closed on June 1.
In civil matters, many attorneys commented that remote hearings should not only continue, but be allowed even in non-emergency situations. For example, some suggested that Rule 43, which requires in-person testimony, should be amended to reflect that video conferencing for some tasks can accomplish as much as live testimony.
Rule 77 also requires trials to be conducted in court, and, “so far as convenient" in a regular courtroom. This could be amended, some attorneys suggested, to specifically allow for remote trials during a national emergency.
Trials and remote testimony are routine for certain state courts and in arbitration.
There were far fewer calls for remote trials in criminal proceedings. With so much on the line in criminal matters, the differences between remote and live testimony can be significant. However, the New York City Bar Association (NYCBA) did suggest to the Committee that defendants could opt in to a video trial if they so choose. The NYCBA also recommended looking at Rule 53, which prohibits the broadcasting of criminal trials, to ensure that any criminal trials that do take place remotely can be accessible to the public.
Commenters suggested that bankruptcy courts could make sure to accept all electronic filing fees and e-signatures. Multiple commenters also called on the courts to allow some procedures, such as the 341 meeting of creditors, to be done remotely even when no national emergency exists. This could cut costs for debtors (and attorneys) who may not want to travel.
As attorneys are discovering what can, and cannot, be done over video and teleconferencing, it will be interesting to see if federal courts update their rules to allow for continued remote procedures, or limit changes to cases of national emergencies.
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