Effect of the Pandemic on Proceduresin U.S. Courts
Paul T. Meiklejohn
Dorsey & Whitney LLP

EFFECT OF COVID-19 ON U.S. COURTS
1Delay of Cases During Pandemic• Delays due to pandemic have disproportionately affectedcivil cases– Criminal cases must take priority: constitutional right to a speedy
trial in criminal cases, but no such right for civil cases• Comparing pending federal cases as of September 30,
2019, to those as of September 30, 2020:– 1.2% increase in pending criminal cases– 55.8% increase in pending civil cases
6000004000002000000Pending cases(2019)
Civil cases

Pending cases(2020)
Criminal cases

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Delay in Civil Jury Trials• Right to jury trial applies to criminal and civil cases• Public health risk to empanel an in-court jury
– Example: in November, a civil case in the Eastern District ofTexas was initially postponed when a juror tested positive for
COVID-19 – the judge later declared a mistrial when 15 people
involved in the case tested positive for COVID-19• Remote jury trials are very rare

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Court Proceedings Not Uniform
During Pandemic• Decisions relating to federal courts’ operation are madeat the circuit and district level• Within a court, individual judges usually have somediscretion to decide how to conduct proceedings

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Remote Court Proceedings• Court can choose a virtual conference platform to be
used:– E.g., WebEx, Microsoft Teams, Zoom

• Fully remote proceedings do not require any participant
to physically be in court, but judges usually are

EFFECT OF COVID-19 ON U.S. COURTS
5In-Court Proceedings• For in-court proceedings, social distancing and masks
are usually required• Some courts conducting in-court proceedings may allow
participants to attend telephonically, such as where thehearing does not require visual aids

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The Federal Circuit• Oral Arguments- All oral arguments are now telephonic (no video)

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Eastern District of Texas• Chief Judge Gilstrap– Had been conducting in-court trials during the pandemic but
recently postponed all in-court trials until at least March 1, 2021,
in part because of a COVID-19 outbreak in the trial of anotherjudge in this district– Other hearings are conducted in court• Recently, a joint motion to conduct the claim construction hearing
remotely was denied

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Western District of Texas• Judge Albright– Had been conducting in-court trials during the pandemic but
recently granted a continuance of a trial in a patent case, citing
the increase in COVID-19 cases in Texas– Directs parties to confer about the necessity of holding a hearing
remotely
While Judge Albright will hold in-court claim construction hearings bydefault, he has conducted at least three claim construction hearings
via Zoom

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The Future• Continued use of remote technology after the pandemic
ends will not be universal– Some judges, such as Judge Barbara Lynn in the Northern
District of Texas, voiced enthusiasm for remote technology andforesees continued use– Other judges, such as Chief Judge Gilstrap in the Eastern
District of Texas, are not interested in continuing use of remotetechnology• Many courts are likely to continue use of remotehearings in some fashion• Remote jury trials are unlikely after the pandemic ends

EFFECT OF COVID-19 ON U.S. COURTS
10THANK YOU!

Paul T. Meiklejohn
PartnerSeattle(206) 903-8746
meiklejohn.paul@dorsey.com

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