By Britta Erin Stanton

Author’s note: This article was originally published in Texas Lawbook on September 22, 2021.

If you’re reading this article, you probably agree with me on the importance of jury trials. Studies have shown that most of us believe that live, in-person jury trials are important.

The backlog is severe. Texas has conducted an average of four jury trials per week during the pandemic, down from the previous weekly average of 186. Other states aren’t faring much better. And no one really knows how big the backlog will be or how long it will take to clear. Even with false starts and delays, we have to tackle it.  

But, we’re having trouble getting there. Are we? Yes, we are. Case(s) in point:

You, personally, dear reader, have heard of others. The examples cited above are just a few of the most high-profile cases suffering from delay. The nature of the delays are different, too. Some delay a trial from being scheduled in the first place. Others, delay the start of a trial. And examples abound of Covid-related delays in the middle of trial.

Many of us are back to school and back to work. Many of us are vaccinated. Courts have the ability to manage safety protocols in the courtroom. So why are we having so much trouble? In short, it’s harder than it looks.

First, courts are keenly aware that they’re being watched. And bad outcomes lead to bad future rules. Time and again, including in the Theranos trial, you see judges delaying or stopping a trial “Out of an abundance of caution.”

Second, although we’d like to think it’s not true, there are many instances where counsel has let the court know he or she or a witness or a party “wasn’t feeling well.” Of course, we hope that means the “ill” party was looking out for everyone in the courtroom and the sanctity of the judicial process. But it’s possible that some of those notices are decidedly not related to a potential threat of Covid-19 exposure, but rather a need or desire for delay. And of course a judge would be hard-pressed to push forward with a threat and notice of potential exposure, even if she suspects it may not be true. The stakes should it prove to be true are too high.

Third, courts are close quarters. We have erected plexiglass fortresses, donned masks and shields, covered microphones, distanced chairs and pews, and doused everyone with hand sanitizer. But the fact remains: Courtrooms can be, and often are, intimate spaces. Clients and parties whisper. Bench conferences are held in close quarters. And jurors ride elevators together. Public spaces are always at risk.

Fourth, the logistics of conducting a live, in-person jury trial are myriad. Every judge and trial lawyer knows how much time and preparation goes into orchestrating a jury trial. Try though we might to get things perfect, some things slip through the cracks. The same is true for Covid protocols.

Finally, many courts are being pressured by competing interests. On the one hand, courts are facing right-to-trial lawsuits. Courts are grappling with the Speedy Trial Act, not to mention a defendant’s right to confront an accuser “face-to-face.” The judicial system has to balance the requirement for the finder of fact to judge credibility with the reality of masks and shields. Courtrooms, open to the press and the public, must set limits to protect trials. Everyone in the system is striving to find a happy medium, even while the landscape of the pandemic is constantly in flux.

In short: It’s hard. But the upside is, we’re trying. We’re learning. And we will press on.

Britta Stanton is a partner at The Castañeda Firm in Dallas. She has also worked as a jury consultant.