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June 4, 2021
The COVID-19 virus has put an enormous strain on the Connecticut court system. It has never confronted such a significant challenge. The Court is now faced with major issues in commencing civil jury trials for all cases, including medical malpractice cases.
Safety, in particular, presents significant concerns. For instance, how will jurors be able to safely congregate in a jury assembly room containing more than 50 jurors and how will they be arranged in the jury box to ensure that they are the appropriate distance from each other and counsel throughout a jury trial? When jury trials do commence, it can be anticipated that jurors, particularly those over 60 years of age, will be reluctant to serve in light of the risk of COVID-19, especially if serving with unvaccinated jurors – which may create a shortage of prospective jurors. Further, courthouses will require extra staffing and perhaps structural changes to ensure the safety of the jurors, judges, court personnel and attorneys.
At present, the Superior Court is scheduled to commence short, limited civil jury trials in the next few months. However, there will be a delay in medical malpractice cases which usually require lengthy trials with more extensive testimony.
Further delay can be anticipated because criminal trials take priority over civil cases. In my view, for these reasons, it could be 12 to 18 months until medical malpractice jury trials of a complex nature will be regularly scheduled.
Civil jury trials present many practical issues which have not yet been decided by the court system:
- Will non-vaccinated participants be required to wear masks or even double masks?
- Will vaccinated participants (especially seniors) be willing to serve with non-vaccinated participants?
- Will participants who have been vaccinated, including judges, staff, attorneys, witnesses and jurors, be required to wear masks?
- Can an in-person trial be effective if judges, lawyers and witnesses are required to wear masks?
Throughout the pandemic, the Superior Court has been utilizing remote technology to hear motions and also to assist the Court in conducting mediations. Medical malpractice mediations performed outside the court system have had very positive results. The present remote system of mediation allows the mediator to speak separately and privately with each counsel on-line. Notwithstanding the many benefits of remote mediation, it is not at all clear whether the insurance companies representing the hospitals and individual defendants will be cooperative in attempting to resolve cases during this interim period without the pressure of trial.
Preparing cases to ready them for mediation and/or trial in this era of COVID-19 presents challenges as well. While remote depositions by the parties outside the Court system are not as effective as in-person depositions, they have become the new norm. While there is capability to conduct depositions with counsel and witnesses being separated, successful management of these depositions requires the cooperation of plaintiff counsel and defense counsel. It serves neither party an advantage to attempt to do the deposition of only the opposite party.
An unexpected positive aspect of the virus is that expert witnesses can be prepared remotely by Zoom or some other video conference platform. Using this technology to communicate allows the sharing of hospital records and films during on-line conferences with the physician. It is anticipated that this technology will now allow “live” expert testimony remotely during an in-person trial.
Jury trials are the backbone of our legal system, and it is extremely important that the Court is available for litigants to resolve issues that require litigation. Prior to the virus, a significant number of medical malpractice cases had been resolved by settlement. However, resolution of these cases at present depends on the cooperation of counsel and on a court system that is available to bring medical malpractices cases to trial.
Richard A. Silver
Silver Golub & Teitell LLP