Credit: Mehaniq/Shutterstock

Her trial team was already settled into the hotel when Monica Latin got the call Friday afternoon. The jury trial set to begin Monday in U.S. District Judge Robert L. Pitman's Austin, Texas, courtroom had been called off because of the region's rising COVID-19 infections. 

"They'd already unloaded everything in the courthouse," Latin, managing partner at Carrington, Coleman, Sloman & Blumenthal, said in an interview with Law.com. "It's like putting the racehorse into the starting gate and then calling off the race."

Monica Latin, managing partner of Carrington, Coleman, Sloman & Blumenthal in Dallas, Texas. (Courtesy photo)

For months, Latin's Dallas-based firm had been booked this week for jury trials in both Texas and California, with Latin set to fly to Orange County to try a breach-of-contract lawsuit the firm brought on behalf of a technology staffing company. Now the trial calendar is empty, after Latin learned Jan. 3 that the Central District of California was suspending jury trials until at least Jan. 24.

"It's impossible to second-guess any of these decisions under these circumstances," Latin said. "I think all of the courts are making the best decisions that they can, and I think everyone appreciates that."

Federal courts across the country are announcing trial suspensions similar to the Central District's, including the Northern District of California in San Francisco, the District of New Jersey and the District of Connecticut. Others such as Pitman's Western District of Texas are still operating at the judges' discretion, which can mean last-minute delays like Latin's team experienced or rebuffed postponement requests like a trial team for 3M recently experienced with Judge M. Casey Rodgers in the Northern District of Florida. 

Trial Backlog 'Until Eternity'

This return to COVID-19-driven trial uncertainty in some districts has left not only attorneys in a lurch but also judges, many of whom already are facing massive caseloads and trial backlogs exacerbated by the first court closures in 2020.

The Central District didn't hold jury trials in any of its Los Angeles, Santa Ana or Riverside courthouses for 14 months, and the number of trials that could go at a time was still limited when juries returned last June. 

U.S. District Judge John A. Kronstadt in Los Angeles told civil counsel in a Zoom hearing Monday that criminal matters will take priority once trials resume.

"I think we all have to recognize we can't have the level of certainty that we'd have under other circumstances," Kronstadt said.

Kronstadt's colleague, U.S. District Judge Jesus G. Bernal, said "it's likely" the trial suspension will be extended, and he warned attorneys that the current Jan. 25 trial date is still tentative.

U.S. District Judge David O. Carter (photo via Meghann M. Cuniff)

"Unfortunately, other people are similarly situated," Bernal said during a Zoom scheduling conference Monday.

The judge said his current schedule load is in feasible: He has 10 jury trials set for Feb. 22. 

"There's one set every Tuesday until here until eternity, basically," Bernal said.

U.S. District Judge David O. Carter described a dire backlog in a Zoom hearing last week. "My civil calendar is a mess," he told attorneys in a criminal case.

"My civil bar is clamoring. They can't get a place at the table," Carter said.

Judge Considers Remote Witnesses

COVID-19 precautions postponed a trial set to start last week in Carter's courtroom in a patent lawsuit Pinn Inc. brought against Apple Inc. in 2019. 

But the judge appears to be working proactively to ensure trials can resume safely after the initial suspension ends on Jan. 24. 

One day after the Central District judges voted to suspend trials through Jan. 24, Carter held a phone conference in which the attorneys stipulated they were prepared to move forward with the trial on Jan. 26 and would work to accommodate "legitimate witness requests relating to COVID-19 concerns, including the ability to appear by video if necessary," according to the clerk's minutes. 

On Monday, Carter advanced the trial to Jan. 25 and ordered the attorneys to work with a special master to provide a witness-by-witness list of requested trial testimony procedures and a joint proposal for trial procedures, right down to the background remote witnesses will use and "how any improper communication by or with the witness (such as text messaging) will be precluded."

Narine Mkrtchyan, an attorney in Glendale, California. (Courtesy photo)

Civil attorneys in other cases are hoping for similar accommodations.

Plaintiff attorney Narine Mkrtchyan was scheduled to begin trial Jan. 11 in a civil rights excessive-force lawsuit that involves sanctions against Long Beach for withholding evidence. The presiding judge, U.S. District Judge Otis D. Wright II in Los Angeles, cited "the press and priority of certain criminal jury trials pursuant to the Speedy Trial Act" when he set the new date for Feb. 1. 

Mkrtchyan said the uncertainty makes her nervous "because I have witnesses under subpoena, and it's been continued several times."

"Not every witness is going to be always available for trial, so definitely this is not very nice for us," Mkrtchyan told Law.com. "But I don't think the judge could do anything when the entire courthouse suspended jury trials."

'It's Just What We Do'

As a trial veteran, Latin is used to last-minute delays for herself and her Carrington Coleman colleagues, caused by many reasons other than COVID.

"We're just used to as trial lawyers things changing, and within 10 minutes your reality is adjusted to this new normal and you move on to the next thing," she said. "Lawyers get inconvenienced all the time. It's just what we do."

But in some cases, lawyers say too many of those other continuances makes another COVID-related delay intolerable.

"It is very important to our client that this case gets to trial without any more delays," said Lawrence J. Conlan of Cappello & Noël in Santa Barbara, who's suing rapper and songwriter Cardi B for copyright infringement. "Cardi has been trying to avoid trial with us for some time now, using a lot of excuses that don't add up."

Cardi B at the 2018 American Music Awards. (Credit: Featureflash Photo Agency/Shutterstock)

Trial is scheduled to begin Feb. 1 before U.S. District Judge Cormac J. Carney in Santa Ana. Conlan and Cardi B's lawyer, Santa Monica solo practitioner Alan Dowling, have been busy filing final trial preparations, including proposed jury instructions.

The trial had been scheduled to begin last September, but Carney continued it after the singer cited COVID risks and her newborn baby. Conlan tried to get Cardi B sanctioned and the trial bumped up after several entertainment websites chronicled her trip to Paris Fashion Week shortly after the continuance, but Carney declined.

"We don't have much control over potential COVID-related delays, but as far as we know, our Feb. 1 trial date is still holding," Conlan told Law.com.