By: Hristo Zevlikaris [1]
On September 22, 2020, the Judiciary issued a Notice to the Bar and Public, Update on Court Operations During “Phase 2.5” of the Supreme Court’s Post-Pandemic Plan. Under Phase 2.5, in-person events may be scheduled where parties have been unable to participate using virtual formats. In-person events, may include new criminal and civil jury selections and trials; Orders to Show Cause to prevent illegal lockouts; and bench trials for more significant or urgent matters.
The initial goal over the coming months, is to conduct at least one civil and criminal trial, contemporaneously, in each Vicinage. Assignment Judges and Presiding Judges will work closely with attorneys to identify the cases that will proceed, taking into account the occupancy challenges associated with cases, especially ones involving multiple parties. Atlantic/Cape May, Bergen, and Cumberland/Gloucester/Salem will be the first Vicinages to resume jury trials, beginning with criminal trials. Trials will then gradually resume in all counties, including civil cases. Criminal trials resumed in Atlantic and Bergen Counties in late September; however, a temporary stay pending an emergent application to the Appellate Division was granted in Bergen County. At issue in the emergent application is the defendant’s objection with the jury array.
Modified juror summonses are being issued for petit (trial) jury selections, informing prospective jurors of the virtual aspects of jury services. If necessary, the Judiciary will provide electronic devices with broadband access to jurors who require the technology. The first phases of jury selection are being conducted by court staff using virtual technology to determine each juror’s proficiency with the internet and web conferencing platform, as well as the availability of an appropriate electronic device and internet access. Thereafter, all case-specific questioning of jurors (voir dire) will be conducted virtually. Following virtual questioning, a small group of jurors will report, in person, for the final phase of selection, including the exercise of peremptory challenges. Social distancing requirements will be maintained with all participants wearing masks. Selected jurors will be empaneled for a socially distanced in-person trial, which will be conducted in accordance with public health guidelines.
To ensure that attorneys and clients have appropriate means to communicate with the judge and each other privately, the Judiciary approved options for sidebar communications and confidential attorney-client communications during jury trials. Equipment will be provided and installed by the Judiciary subject to availability. Sidebar communications of 10 minutes or less may occur in the courtroom with barriers separating the judge and the attorneys, all of whom should be wearing masks. For matters over 10 minutes, sidebar communications can be conducted in the courtroom with other participants vacating the room. Alternatively, the judge, attorneys, and parties can relocate to a second courtroom reserved for the trial or the judge’s chambers. Attorneys and clients can use walkie-talkie style headsets configured with earpieces, pass handwritten notes, utilize restricted-use phones, or speak quietly to each other while separated by a plexiglass barrier and wearing masks. In limited circumstances, attorneys and clients could also relocate to a designated room for private conversations.
As outlined above, the Judiciary has incrementally increased in-person proceedings while continuing to follow a “remote first” model. However, as is illustrated in Bergen County, these incremental efforts could potentially raise Constitutional concerns, especially when involving criminal matters, as the reliance on technology may improperly limit the availability and participation of certain prospective jurors. Although the Judiciary’s goal is to conduct civil and criminal trials contemporaneously, criminal matters have taken precedence. We will continue to monitor the pending appeal in Bergen County, as potentially, the Appellate Division’s decision could halt efforts to resume criminal trials, thus shifting the focus to civil trials. In light of the anticipated delay in resuming jury trials, especially ones involving multiple parties, the Judiciary has encouraged alternatives to jury trials, such as bench trials, settlement conferences, or mediations. These proceedings may provide an expedition resolution to a contested matter where the resumption of civil trials and full court operations remains uncertain.
[1] Hristo “Chris” Zevlikaris, Esq. is a Shareholder in GRSLBG&B’s Litigation Department. He defends a wide variety of clients in various civil actions brought forth in New Jersey State and Federal Courts. Chris can be reached at CZevlikaris@grsl.com.
