We have previously discussed (here and here) the complex issues surrounding the resumption of jury trials during the COVID-19 pandemic. We cautioned that the various experimental efforts to resume jury trials taking place in courts around the country were likely to meet with a host of practical and jurisprudential problems. A few weeks later, it appears that our assessment was, if anything, too optimistic. Many of the states that had been taking first steps toward resuming jury trials in some form are now shutting down those experiments because of the spike in COVID-19 cases that is now occurring around the country.

On Friday, a breach of contract trial in the Eastern District of Texas was suspended after at least seven people involved in the trial tested positive for COVID-19. The Eastern District of Texas has been holding jury trials since June, and has been one of the most active federal courts for jury trials since the national shutdown earlier this year. Going forward, the court intends to reassess its safety protocols week-to-week in light of the COVID-19 spike in Texas. Also on Friday, New York court officials postponed all new jury trials and grand jury proceedings. This was in response to at least 15 individuals who work in the New York City’s court system testing positive for COVID-19 in the prior week. And on Monday, the New Jersey Supreme Court issued an Order suspending all in-person jury trials and in-person grand jury proceedings until further notice. The New Jersey Order comes barely a month after the state began experimenting with socially-distanced jury trials on a very limited basis. In fact, according to the Order, only one socially-distanced in-person jury trial is currently taking place in the state, and that trial may continue “absent a particular reason to suspend or end the trial.”

With jury trials again at a standstill for the foreseeable future, businesses currently litigating or anticipating business disputes must be prepared for the effect this shutdown will have on court systems throughout the country—potentially for years to come. Even if the COVID-19 vaccines that have made recent headlines are as successful as everyone hopes, and even if they are successfully deployed on a wide scale in the first half of 2021, jury trials will have been suspended in most jurisdictions for at least a year. When jury trials resume, there will be an unprecedented backlog of cases to be tried. In jurisdictions like the federal courts, where the same judges hear both criminal and civil cases, criminal cases will have to be given priority over civil cases due to Sixth Amendment “speedy trial” concerns. It could be years before courts are holding jury trials in complex commercial cases at pre-pandemic rates. This will likely have a dramatic effect on settlement negotiations, as litigants will have little incentive to take settlement negotiations seriously with no trial date looming.

Foreseeing this dilemma, the New Jersey Supreme Court’s latest Order promises that the “Judiciary and stakeholders will continue to explore the potential for virtual civil trials,” and other jurisdictions are sure to do the same. But virtual jury trials create a whole new set of problems that we previously explored here.

Like many other areas of life, the COVID-19 has likely changed the way courts will do business for years to come.