Litigation in New Jersey During the Covid-19 Pandemic
As we approach the one-year anniversary of the New Jersey Statewide “shutdown” due to COVID-19, it is worth assessing how the New Jersey Courts adapted. Apart from jury trials, the New Jersey courts barely missed a beat keeping litigation in step.
With little lag time required to figure out the technical aspects, the courts promptly switched to virtual hearings on discovery motions, substantive motions, “friendly” hearings to approve settlements involving a minor, case management conferences, and settlement conferences. The NJ Supreme Court has reported that since March of 2020, judges in the various New Jersey courts have held more than 120,000 remote court events, involving almost 1.5 million participants.
For a very brief time in September, in-person trials were started in Atlantic and Gloucester Counties. An increase in COVID-19 diagnoses and hospitalizations then put an end (via a November 16, 2020 Supreme Court order) to efforts to return to in-person trials held in the county courthouses. We then were in a period of voluntary virtual jury trials in eight of the state counties, which became mandatory state-wide as of April 5, 2021.
In response to the pandemic, the New Jersey Supreme Court has provided guidance to the municipal, Superior, and Appellate Courts with respect to changes in court operations via regular Orders over the past year, starting with its First Omnibus Order of March 27, 2020, and continuing through its most recent Order on February 1, 2021.
Starting April 5, 2021, all civil case types became eligible to be scheduled for virtual civil jury trials. Due to the technological challenges and the extreme backlog in the courts’ dockets, to the extent possible virtual civil jury trials in each county will begin with cases involving a single plaintiff, a single defendant, with a modest number of witnesses. For example, the courts hope to be able to begin holding trials in auto verbal threshold expedited cases, as those trials can usually be accomplished in one or two days. It is anticipated that more complex cases will not begin to be held until the counties have conducted several simpler/streamlined cases, to iron out the technological kinks.
It has been reported that each county’s judiciary will handle its selection of which cases will be tried as that county’s case management staff and civil judges see fit. Most counties will initially be holding only one trial per week.
The Court has ordered that jury selection in trials will be conducted in an entirely virtual format. The court will provide Samsung Galaxy Pro tablets to all empaneled jurors, if needed. Pre-trial conferences will be more comprehensive than those generally held prior to the pandemic, i.e. to cover all aspects of the virtual trial process. The assigned judge and involved attorneys will have the right to agree to conduct the trial in a hybrid format, with the judge and attorneys possibly participating from a courtroom. Witness testimony that would be presented live in an in-person format should as a general rule be presented via live video. Videotaped depositions (usually of medical experts) may still be introduced at trial as before.