District of Delaware Pushes Back Jury Trial Scheduled to Be Among First Since Shutdowns

The U.S. District Court for the District of Delaware again postponed all jury trials last week, including what would have been one of the first to be held in person in the country since the COVID-19 pandemic limited court proceedings nationwide.

Sunoco Partners Marketing & Terminals LP’s intellectual property case against energy companies Powder Springs Logistics LLC and Magellan Midstream Partners LP, which has been pending for almost three years, was scheduled to go to trial beginning August 3, with a combination of in-person appearances and remote witnesses, but has been postponed indefinitely.

U.S. District Chief Judge Leonard P. Stark of the District of Delaware issued an order July 16 stating the decision to postpone federal jury trials in Delaware at least through the end of August was made as a safety precaution in an attempt to both minimize the large gatherings that jury selection would entail and cut down on travel for those involved in court matters.

U.S. District Chief Judge Leonard Stark of the District of Delaware. Photo: Jason Doiy/ALM

In a memorandum order issued at the beginning of the month, Stark outlined what were intended at the time to be precautions taken during the Sunoco trial, including having witnesses testify remotely and limiting the number of people permitted in the courtroom.

“This is something of an experiment,” Stark wrote in the order, which concluded by noting the possibility of a continuance. “I expect I will follow different procedures in other cases and at different times and I strongly suspect my colleagues (in the District of Delaware and elsewhere) will do things differently than I plan to do at this trial. I am entering this order as the presiding judge in this specific case, not as chief judge of the district.”

If the trial had gone forward, it would have been preceded by only a handful of in-person jury trials to have begun in the U.S. since court systems began determining individually how to address the pandemic. In April, during what may have been the first attempt at a jury trial since courts closed, jury selection for the trial of a man in Ohio ended abruptly when the defendant became short of breath and the trial was postponed.

Federal jury trials have only just begun in Texas, and New Jersey has resumed trials that were cut short months ago, though the state isn’t currently beginning new jury trials. Similar to the District of Delaware, an order was issued over the weekend pushing back jury trials in Florida, which had planned to resume jury trial proceedings Monday.

“By what I can tell and what’s been reported, they’ve all been running relatively smooth. They’ve not surprisingly had a couple technical issues,” said Dan Wolfe, senior director of jury consulting for Magna Legal Services, of the trials that have taken place recently. “In terms of just getting people in and out and things of that nature, they seem to be going fairly well, by all accounts.”

As is the case throughout most of the country, trials are also on hold in Delaware’s state courts, with in-person jury trials not to take place until the Delaware Judiciary reaches Phase 3 of its four-phase reopening plan, though trials that don’t require a jury have been underway. Currently, Delaware courts are under Phase 2 of the plan. On July 6, Chief Justice Collins J. Seitz Jr. extended the state’s judicial emergency and said it’s expected to stay in Phase 2 until Aug. 6 and likely longer.

Wolfe said, based on the trials that have proceeded so far, he’s seen two predominant factors that seem to be key in a court system’s ability to resume trials. First, he said, courts have ensured they have access to a space large enough to hold everyone needed for a trial while maintaining social distancing guidelines, whether that be a large courtroom or a location such as a gymnasium or theater.

Second, Wolfe said, the courts that have been able to successfully start jury trials have been those in judiciary systems with good communication. He said it’s expected that people will be more likely to show up for jury duty if the court system has communicated to them the procedures in place for their safety beforehand.

“People have been fairly accommodating and understanding and appreciative that the court personnel have tried to work really hard to accommodate the jurors,” Wolfe said. “Anecdotally, several people have reported everybody being ‘more patient.’”

Magna recently surveyed 500 people nationwide in an attempt to gain insight on how prospective jurors’ attitudes might have been impacted by COVID-19. While the results of the survey are still being analyzed, Wolfe said 60% of those surveyed said they would be less critical of those working in health care than they might have been prior to the pandemic, while more than 80% said they were concerned about the safety of health care workers who are dealing with the virus directly, and 23% said they, a family member or a close friend has been a first responder who has addressed COVID-19.

“Certainly, (in) cases like medical malpractice cases, it’s that notion of a halo effect,” Wolfe said. “We saw this post-9/11 for firefighters and law enforcement officials, this positive perception. So certainly, we’re seeing that here.”

Wolfe said Magna has also noted that during both mock jury trials and proceedings involving remote witnesses during actual trials, jurors reported approval of seeing people speak via video call, rather than in front of them in a courtroom.

“They actually report a more positive experience because they can see the witnesses more closely, whereas in a courtroom, they might be more distant and it might make it more difficult for them to judge facial expressions and the like,” Wolfe said.

This piece originally appeared in Delaware Law Weekly on July 22, 2020.

Juries in a Post-Coronavirus World: New Lawsuits, New Exposure, New Juries!

This webinar originally aired live on July 22, 2020

We hosted a webinar on July 22nd “Juries in a Post-Coronavirus World: New Lawsuits, New Exposure, New Juries!“, to answer:
– What will juries and plaintiffs’ counsel do in a post COVID-19 world?
– What new lawsuits will be filed…and how will juries respond?

View the video above to hear our panelists discuss the new developments in defending Coronavirus lawsuits.

Moderated by:
Robert Tyson Esq., Tyson & Mendes, Partner

Panelists Include:
Mark Calzaretta, Magna Legal Services, EVP of Litigation Consulting
Richard Fabian, The RiverStone Group, Chief Strategy Officer
Stefanie Milch, Hallmark Financial Services, Vice President
Julia Macias, Sysco Corporation, Manager, Casualty Claims

Produced by:
Peter Hecht, Magna Legal Services, Partner & Executive VP of Sales

Q&A coming soon!

Thank you to everyone who tuned in!
Don’t miss any upcoming Magna webinars or conferences:

Trial Lawyers Strike Back as COVID-19 Fuels Litigation Support Innovation

As the COVID-19 pandemic began shuttering courthouses and law offices across the country, two attorneys who use the litigation management platform Litify told its chief revenue officer, Terry Dohrmann, that the company could become the legal industry’s Zoom—in reference to the video conferencing app that has become wildly popular as people across the globe practice social distancing.

The comments, Dohrmann said, got the company leaders thinking, “If we really are [the legal industry’s Zoom], then let’s act like it,” he said. And with that, the company began to develop its enhanced video conferencing program called Uplink, which launched recently.

The program is one of several litigation support applications and services that have been developed, tweaked or repackaged by litigation support companies in an effort to meet the growing and evolving demands of trial attorneys, as the coronavirus has forced the industry into a new normal.

On the firm side of things, Philadelphia attorney Kevin Marciano of Marciano & MacAvoy said that, as a personal injury lawyer, he rarely had to focus before on thoroughly tracking time, but, with his staff now working from home, he has begun asking employees to start filling out regular time sheets. And to make sure they stay focused on work-related tasks he also asked his workers to download software that keeps track of what they are doing online.

“It gives you some control,” Marciano said. “I actually think I’m going to use it when things get back to normal. You can’t be with someone all the time, but this gives them the ability to work independently.”

The stories illustrate a trend that attorneys and legal tech industry insiders are beginning to see, as the coronavirus is leading trial lawyers to experiment with new technologies and has fueled a wave of innovation from the litigation support industry. According to court watchers, these new trends will likely lead to lasting changes for the legal world once the pandemic subsides.

“COVID-19 is going to be the mother of all innovation,” Peter Hecht, executive vice president of sales at Magna Legal Services, said.

Evolving Demand

Along with a need for new technologies aimed at pushing cases forward in a virtual environment, the new environment has driven a need for technology that helps attorneys tackle the challenges of managing their workforce remotely.

Along with Marciano, several trial attorneys who spoke with The Legal said they have turned to management programs, such as ActivTrak, that allow firm leaders to closely monitor their employees’ online activity.

For Marciano, the technology has been a ”game-changer.”

According to Marciano, the program can tell how long a computer’s been idle, it can take screenshots of an employee’s computer every few minutes, and it can print out a pie chart of all the websites the staff has been on in a given day.

The program not only allowed his firm to keep an eye on their workers, but it also helped the employees adapt their work schedules to what made the most sense, given their family situation, he said.

“You have to be flexible,” Marciano said. “It’s hard, but people are adjusting.”

Philadelphia attorney Jon Ostroff of Ostroff Law said he has also been exploring ways to monitor his employees remotely, and has been using a Voice Over Internet Phone system as a way to keep his workers connected remotely. The system, which he said is more secure than Zoom, can allow staff to set up chatrooms for the various internal groups that need to stay in constant contact, such as pre-litigation paralegals. It has also helped the staff hold regular office-wide meetings, which he said is a big part of maintaining firm culture.

“We don’t want people to be isolated. Part of what works in our office is our culture,” he said.

Echoing sentiments expressed by others, Ostroff said he is exploring ways to allow his staff to continue working remotely, even after the pandemic has passed. Specifically, he said he was considering the idea of having work stations, which attorneys could use on the rotating basis, only coming into the office two or three days each week.

“We are so pleased with the way working remotely has gone, we’re not going to stop with this. We’re absolutely going to set up ourselves to be a virtual firm,” Ostroff said.

‘Something’s Going to Stick’

Magna Legal Services recently launched JuryConfirm 2020, which expands the company’s online capabilities for handling focus groups and mock trials, allowing for multi-day online sessions.

The program, which revamps the company’s existing JuryConfirm platform, was already in the works before the COVID-19 pandemic hit, but according to Hecht, the program dovetails perfectly into the shifting needs of the trial bar.

Along with the JuryConfirm2020 program, he said, the company is working to marry existing services with the trial bar’s emerging needs. For instance, he said the company has started offering expanded virtual deposition services, which include a jury consulting technician who can handle all the exhibits.

Several attorneys who spoke with The Legal said that one of the downsides of virtual depositions is that, with big files having to be sent beforehand, attorneys often lose the element of surprise. According to Hecht, the company’s newer services are aimed at addressing those concerns, among others, and with the programs becoming more like the live thing, attorneys are going to increasingly rely on these devices, growing the demand even further.

“I think the online deposition platforms are going to be here to stay. So many people are just naturally going to say, I want to do this one remotely,” Hecht said. “They’re going to have done this hundreds of times. It’s going to become natural.”

Dohrmann said his company has been almost busier than it was before COVID-19 hit.

Along with launching Uplink, the company also launched in recent weeks a condensed version of its cloud-based platform, called LitifyGo, which allows attorneys to access the system from anywhere, including a tablet or phone.

Attorneys, he said, are increasingly interested in finding easier ways to share documents, and to more seamlessly communicate with clients, so his company is finding new ways to use portals for document sharing and adding communication features so lawyers can do things like text directly from the Litify platform.

With so many court systems partially shut down and offering varying degrees of services, attorneys have also been struggling for weeks to stay on top of the ever-changing patchwork of delayed deadlines and filing procedures, and firm leaders, who used to get a feel for the firm’s caseload and progress by walking the halls, have also been looking for ways to keep a virtual eye on what’s coming in and what work is ending. Dohrmann said attorneys have been increasingly looking to online dashboards to help them tackle those problems as well.

“They’re looking for better ways to stay as close as they have been in the past, so it’s leveraging technology to do so,” he said. “Embracing technology, rethinking client communication, those are all definitely what we’re seeing.”

Since the shutdowns, the legal industry has faced unprecedented challenges, and there has been a lot of confusion. However, according to litigation tech insiders, one things is certain: the time is ripe for innovation.

“People are going to pop things out there,” Hecht said. “And something’s going to stick.”

This piece originally appeared in The Legal Intelligence on May 6, 2020.

The Viability of Virtual Jury Trials

This webinar originally aired live on 7.1.2020

In May 2020, a Texas court held the nation’s first jury trial via Zoom.

Magna Legal Services held a panel discussion, “Viability of Virtual Jury Trials”, which featured Judge Emily Miskel, who presided over that case, as well as the Civil Jury Project and other expert panelists, as we explore the plausibility of virtual trials.

View the video above to watch our panelists debate the pros and cons of remote trials, and explain in practical terms how these virtual proceedings have actually been carried out.

Judge Emily Miskel, 470th District Court, Collin County, TX
Judge Mark A. Drummond, Circuit Court Judge, 8th Judicial Circuit of Illinois (Retired); Judicial Director, Civil Jury Project
Christine Carbo Marziotti, Senior Litigation Counsel, Phillips 66
Jeffrey Tillotson, Esq., Founder, Tillotson Law
Daniel Wolfe, J.D., Ph.D., Senior Director of Jury Consulting, Magna Legal Services

Moderated by:
Terrell W. Oxford, Esq. Partner, Susman Godfrey LLP

Produced by:
Peter Hecht, Partner & Executive VP of Sales, Magna Legal Services
Canby Wood, Esq., Business Development Manager, Magna Legal Services

You asked, we answered!
Here’s some questions that viewers raised during the program:

Are jurors ok with just using a smartphone in the virtual environment? Can they see exhibits? What about running out of battery and data on their plan?

A:  Yes, most of the jurors used a desktop, laptop or tablet but can use a smart phone if needed. They can see exhibits but understandably they will be harder to see given the size of the screen on most smart phones as compared to a computer, and we heard about exhibits being presented in couple different ways: through a document sharing application as well as through screen sharing. If jurors are using a smart phone we encourage them to have their charger handy so they can keep their phone charged, and if they are not using an unlimited data plan we encourage them to access wifi.

Will this virtual jury selection make it more likely for people with the proper access and data to be called for this type of jury duty?

A: Jury selection will still be conducted as it always has through the Jury Plan in each jurisdiction.  However, having access to technology and data is one of the biggest concerns to ensuring a representative cross-section of jurors for virtual jury trials.

How can we ensure that the jurors and/or parties are not messaging each other in private messages?
How can we ensure the jurors are not attending the trial on one screen and googling the issues being presented on another screen or their phone, and essentially introducing extraneous evidence and biases into their deliberation process? 
Furthermore, should the deliberation process be recorded and have it be available to the court for an in camera review in case of a juror misconduct complaint?

A: The thought is that regardless of whether the trial is being held in a building or virtually, these are human nature issues and they exist in both environments and should be addressed the same way: jurors are admonished and trusted unless evidence is produced otherwise. Also you can tell by watching the participants on zoom whether they are paying attention and focused on the trial, their behavior can be watched and there are tools to determine whether they are focused and participating.

What was used and the process of showing exhibits, arguing for and against the admissibility, and eventually publishing to the jury?

A: Document sharing sites were agreed to in advance and used. And it was important to make sure there was an “IT quarterback” who managed documents as well as participants moving in and out of “rooms”.

Did you find the jury voir dire to take a comparable amount of time or significantly longer/shorter?

A:  The process was actually more efficient but did not significantly differ than what would have likely occurred if in person.

Have any of your pandemic-era trials been hybrid with the attorneys and jury live and all or some witnesses remote?

A: Yes, and it’s the worst of both worlds. It required a lot of set up in advance to ensure technology for both, ensure social distancing, etc. Better to either do completely remotely, or all in-person.

Do we have any data that would help evaluate how long a juror could stay focused during a trial that goes beyond a few days?

A: Mr. Tillotson will be releasing the data from his survey projects in July and this is one of the issues he will address.  

Question to Christine Carbo Marziotti, do you think there is anything appealable based on process?

A: Yes, on due process grounds.

View Judge Drummond’s (Civil Jury Project) newsletter here

Thank you to everyone who tuned in!
Don’t miss any upcoming Magna webinars or conferences: