On March 17, 2020, the Philadelphia County Court of Common Pleas suspended all civil jury trials for the health and safety of the judges, staff, counsel, litigants, and the public. Almost a full year later, on March 2, 2021, the Court published a fourteen (14) page protocol (the “Protocol”) for the conduct of jury trials amidst the pandemic to enable the Philadelphia County Court of Common Pleas to resume civil jury trials. The first day of jury selection began on March 4, 2021 and the first full day of jury trial is scheduled to conclude on March 8, 2021.
The Protocol is important in that, like many other restrictions in other areas pertaining to the pandemic, it drastically changes how civil jury trials are to be conducted. While the Protocol is subject to change, the Protocol contemplates that there will be six civil jury trials held every week. However, for the first few weeks only a total of four civil cases will be tried. For a point of comparison, at the beginning of 2019 there was a total of 361 total civil jury trials. Given the lack of civil jury trials for the past year, it should be expected that a back log of cases ready to be tried would be roughly this number.
Initially, the pre-trial order for any civil case to be tried subject to the Protocol will contain strict occupancy limits for the courtroom and any person who would exceed the occupancy limit will not be permitted in the courtroom. The pre-trial order will also mandate a strict number of days for the jury trial. Per the Protocol, “Because courtroom assignments are no longer fungible – i.e., each trial has been scheduled months in advance for a specific courtroom for a specific number of trial days – it is imperative that counsel adhere to the agreed upon number of trial days.”
Every trial will require the use of two courtrooms; one used to conduct the trial and the other for the jury to deliberate. During the pendency of the trial, the jury will sit in the gallery of the courtroom rather than the jury box as a means of maintaining social distancing. Inside the well, counsel and the parties/party representatives will sit at tables where each chair is at least six feet apart. The Court will also maintain plexiglass dividers where the six foot social distancing cannot be maintained. Face masks will be mandatory at all times in city hall (where the Courtrooms are located) regardless of whether a person was vaccinated. Two face masks are recommended, but not required.
Jury selection will be split up into two parts. For the first part, the presiding judge will ask general questions and introduce the parties and their attorneys. After this first portion an individual voir dire will take place wherein only judicial staff, the attorneys, and the prospective jurors will be present. Depending on the Courtroom used, one or five prospective jurors will be present at a time. Once the individual voir dire is completed, counsel will begin the process of striking jurors with special procedures in place to maintain social distancing and not use similar writing utensils and shall not touch the paper used for the strikes. Jury selection will be held on the Thursday or Friday before the week of the jury trial which is to commence on the following Monday.
The Protocol states that witnesses cannot be examined through zoom unless otherwise permitted by the rules of civil procedure or rules of evidence. The Protocol indicates that witnesses may not even be permitted into city hall until they are ready to testify. Security will maintain a list of the parties and their counsel, but not the witnesses. If a witness is not permitted inside, the attorney is instructed to notify security. Presentation of evidence will be through electronic means unless specifically permitted by the presiding judge. Sidebars will be heavily discouraged and if necessary the Court will call a recess and have the jury move to the smaller courtroom. No trial participant will be permitted to eat inside city hall. During any breaks, the jurors will go to the smaller courtroom. All other trial participants will either remain seated or will have to leave city hall.
For those curious, the Philadelphia County Court of Common Pleas intends on livestreaming all civil trials via YouTube at https://www.courts.phila.gov/livestreams/. This livestream will be available for witnesses and the public alike. To the extent a sequestration order is in effect for the trial, counsel will be required to advise all participants to abide by such sequestration order by not watching the livestream.
