C O U R T I S N O W I N S E S S I O N
-TIPS FOR TRYING
YOUR CASE IN
THE NEW NORMAL
Panelists:
Hon. David E. Johnson
Hon. Randall G. Johnson, Jr. Moderator:
TIP 1
The “new normal” is neither normal nor permanent.
The judicial emergency requires all participants to focus on considerations of liberty and constitutional issues at stake, the health and safety of the
parties, attorneys, court personnel, and others necessarily involved, and the ability of the court to safely proceed, until we can restore
pre-pandemic procedures.
TIP 2
Any substantive motions should be filed and litigated in conformance with the pre-trial order
Do not expect any substantive pre-trial issues to be considered the day of trial. Juries are scheduled to begin at 10 a.m. following a 9 a.m.
criminal show cause docket. Pre-pandemic substantive pre-trial motions were heard during the show cause docket. We will not
require the pool of jurors to wait while substantive issues are litigated. This should be done prior to the date of trial.
TIP 3
All juries, civil and criminal, require a pretrial conference with the trial judge. This is a requirement to be sure all of the attorneys are aware of the many new requirements.
I recommend this be done in person and not virtually so the new layout of the court with jurors may be seen.
TIP 4
Do not assume that all COVID-related rules or directives are themselves dispositive of cases or legal issues.
In some instances—such as prohibiting entry into the courthouse for specific reasons—they are. In some instances, the court has discretion.
In all instances, the Constitution and the rule of law remain paramount. Do not assume you will be viewed as impertinent for raising such issues with the court.
TIP 5
Treat the date that your case is set for trial before a jury like a precious commodity.
As of March 2, 2021, twelve (12) civil jury trials were tried over thirteen (13) days and ten (10) criminal jury trials tried over twenty-two (22) days during the pandemic.
Three (3) of the courtrooms have been constructed and approved for pandemic-era jury trials. Thus, the court has the capacity to seat three (3) juries at a time depending on how many are civil versus criminal.
If your jury trial is continued, it will likely be continued for some time longer
than was the norm pre-COVID. Lawyers should anticipate the judge presiding to ask questions concerning the continuance and whether the issue is one that was foreseen or could be resolved without a continuance.
TIP 6
The Jury Plan requires a separate copy of each instruction and each paper exhibit for each juror. (i.e. 7 jurors require 7 sets of instruction and 7 copies of each paper exhibit.) Jurors are kept 6 feet apart at all times and are seated in the gallery area of the court where the public previously sat.
Jurors retire to their own separate courtroom to deliberate or take breaks instead of the old jury room.
A television is placed in a separate courtroom so the public or family can see and hear the trial.
TIP 7
Be prepared to offer evidence in support of COVID-related motions.
Continuances are consistently granted due to COVID health issues, but the individual circumstances may require proof when the party is able to appear.
TIP 8
The Virginia Supreme Court has required the Court to relax its rules concerning requests for attorneys and witnesses to appear remotely for court. Such motions and/or requests should be filed well before the trial date so that any objections can be resolved prior to trial. Requests must conform to the Court’s pretrial orders, the rules of discovery
applicable to criminal cases, and due process.
Parties should also consider the practical effect on a jury of witnesses appearing remotely for trial. The Court encourages all parties to contact Ed Mekalian, the Court’s IT
specialist, at (804) 301-1522 to discuss technological issues relating to the appearance of witnesses who have been approved to appear remotely.
Mr. Mekalian is also available to discuss the technology capabilities of each courtroom and the equipment available to aid the presentation of evidence at trial. Attorneys and/or their technology specialists should schedule an appointment to test the Court’s
equipment and the compatibility of the attorney’s equipment before the trial date. Judge R. Johnson, Jr.
TIP 9
Do not complicate voir dire with questions like “is any one so concerned about COVID that they could not give us their full
attention?” Everyone in the courtroom is concerned about COVID: jurors, witnesses, attorneys, deputies, clerks, judges, etc. Asking a question like this is just a sign to the Court that you don’t want to try the case. I do not usually require voir dire questions to be
pre-approved by the Court, but if voir dire goes off on tangents, and not relevant to the statutory factors, counsel will be redirected.
