Multnomah County Circuit Court Civil Trial COVID-19 Alternatives
Dear members of the bar – Virtually no in-person civil jury trials are currently allowed because the Chief Justice Order dated November 18, 2020 prohibits in-person court proceedings except when “the trial or proceeding cannot feasibly be held entirely by remote means, that it is important that the trial or proceeding not be postponed, that the trial or proceeding can be held without significant risk to health, and that the requirements [of social distancing and mask wearing etc.] can be met.”
Following are alternatives the Multnomah County Circuit Court is offering during the COVID-19 pandemic to try to get civil cases moving and resolved during the time when we can’t do in-person jury trials.
- Fully remote jury trials. Other jurisdictions around the country have held fully remote jury trials with success and we are now offering the same. Our first remote jury trial is scheduled to begin March 15, 2021. We are not requiring anyone to do a remote jury trial; this is purely voluntary, and the parties will need to stipulate to all the procedures used.
- Parties select their judge for a bench trial. In normal times the trial judge is assigned without input from the parties. However, during the pandemic only, if the parties agree to a bench trial, we will allow the parties to provide a list of three or more judges whom they jointly agree would be acceptable for hearing the bench trial as well as proposed dates for the trial. The presiding judge will then check the judges’ availability and will assign one of those judges as the trial judge if there is availability. This is a pilot program which will be used solely during the pandemic, and there is no guarantee that the proposed judges will have availability during the selected time slots (the more flexibility the parties have for trial dates, the better the chance of finding availability for one of the judges). If none of the judges are available, the parties are not obligated to have a bench trial.
- If the parties choose to have a bench trial it will need to be done remotely, at least as long as the current Chief Justice Order is in effect.
- Even if the Chief Justice Order is modified to allow in-person civil bench trials, it would seemingly make most sense to have the trial done remotely for the practical reason that it would allow the lawyers, parties, witnesses and the judge to all participate without wearing masks, which leads to clearer communication than an in-person proceeding where everyone is masked.
- Settlement judges. Although there are plenty of private mediators willing and able to help the parties resolve their cases, we have been advised that there is a desire to have judges involved in settlement conferences because there are some cases that would benefit from having a judicial officer involved. There are 20 elected judges who will handle civil settlement conferences, subject to availability. The time available for the judicial settlement conferences is limited, both in terms of number of slots available and the time for each conference, because hearings and trials in criminal and civil matters take precedence. Generally, the time slots available for the civil settlement conferences are two hours or less. Each side must also pay a settlement conference fee in the amount of $223 (low income parties may seek a deferral of this fee).
- The settlement conferences will most likely be via video, which will allow a better sense of connection because everyone will be able to see the others’ unmasked faces.
- Anyone who is interested in having a judicial settlement conference may contact Chief Civil Judge Chris Marshall (Christopher.J.MARSHALL@ojd.state.or.us) who will work on finding a judge who is available.
- Options when more in-person proceedings are allowed. Even after the current restrictions on in-person proceedings are loosened, it is unlikely we will immediately go back to business as usual with 12-juror, in-person trials at the courthouse. Rather, there will likely still be a need to limit the number of people in the courthouse and in the courtrooms for much of 2021. Therefore, it may be helpful for the parties to start thinking about alternatives that all sides would be willing to agree to in order to get cases tried during that transitional period. Following are some options that might be workable, either individually or in conjunction with each other, if the restrictions on in-person proceedings are loosed but not fully lifted:
- Remote jury selection with rest of the trial live;
- Smaller number of jurors (e.g. six or eight-person jury);
- Parties in the courtroom but non-party witnesses and jury remote (possibly with the jurors in a different courtroom);
- Jurors in the courtroom but the parties and witnesses are remote; or
- 12-person jury at a large, off-site location that will not cost the court any money and which is available to all parties regardless of resources.
These possibilities, or other proposals, can be discussed in a scheduling conference with presiding court once the current restrictions are lifted.
- Open to other creative ideas. If you have other creative ideas or proposals that you think might be workable under the current restrictions or after the restrictions are loosened, we are happy to hear your ideas. If the ideas are not workable, we can let you know why. But it may be that there is something creative that we have not considered and just might be workable.
All of the above options are subject to change without notice depending on what we learn during these new experiences and how much demand there is. Thank you for your patience in these difficult times.
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