Philadelphia paid dearly for its reticence in taking safety precautions during the 1918 flu pandemic when we led the country in deaths. Good thing it was a different story when the COVID-19 pandemic arrived in Pennsylvania in March 2020. Philadelphia immediately began to shut down non-life sustaining operations and services, which, for the time being, included the courts of the First Judicial District (FJD) in which I serve as a judge. The courts never fully closed, but the hallways of City Hall and other court buildings emptied out.
Masks, Zoom, and Plexiglass
While the public and private sectors figured out how to navigate this brave new world, our municipal courts and family courts—which serve at the front lines of our legal system—had no choice but to find a way to re-open for business. Guided by the basic CDC recommendations, the court leadership mandated the use of masks, dropped plastic drapes from the ceilings, built plexiglass shields, and deployed advanced communications technology to keep courtrooms open and judges, court personnel, litigants, and counsel as safe as possible.
The court also quickly set up a base of operations in the basement of the Stout Criminal Justice Center to accept and handle emergency filings and proceedings for all divisions of the First Judicial District. Emergency judges, who normally serve during evenings and weekends of their assigned week, were now on call 24/7.
In the fall of 2020, as the COVID-19 pandemic raged across the United States and many sheltered at home, Philadelphia had to prepare for a general election and any post-election challenges. On November 3, 2020, I sat in Election Court in the Stout Criminal Justice Center, which was retrofitted for COVID-19. Everyone wore masks, we communicated through plexiglass dividers, the court reporters and the press corps were socially distanced, and the witnesses participated from remote locations via Zoom. The parties made their motions, witnesses testified, lawyers objected, and the judges ruled. It all worked, thanks to the persistence and cooperation of the bench, the bar, election officials, and our technological team, not to mention the lived experience of our fellow courts.
The Civil Trial Division had by September 2020 started to hold non-jury trials, settlement conferences, motion hearings, and arbitrations by Zoom. It is astounding how quickly the judiciary, including our most senior members, adapted to the use of advanced communications technology to conduct business.
We all know that the virtual format is convenient for the parties, ensures that party representatives are easier to bring to the table, and is an efficient way to schedule and conduct hearings and oral arguments. Appellate courts appreciate the convenience and cost savings of virtual hearings, which also save a lot of time. Court reporters sometimes prefer Zoom to live testimony because they can hear the parties more clearly.
The virtual format, however, has potential downsides when it comes to court proceedings. The inherent solemnity and decorum of the courtroom are lost. Parties can be more casual in this setting, and, despite direct warnings and the best colloquies, there is a greater risk that a witness may receive coaching from a person off-screen, refer to notes during their testimony before receiving authorization to do so, or get distracted, especially when working from home.
Inventing a Juror-Focused Courtroom
Due to some of these concerns, the Civil Trial Division of the FJD opted not to conduct jury selection or jury trials by Zoom. Instead, the Civil Trial Division, overseen by the Hon. Lisette Shirdan-Harris and supervised and led by the Hon. Daniel Anders—who carried with him everywhere a six-foot-long plastic pole for measurement—and the Hon. Nina Wright-Padilla reconfigured with input from key stakeholders the courtrooms for in-person jury trials starting March 2021.
Any potential juror who has any qualms about serving at this time is excused, although they are subject to getting recalled to jury duty within the year. The jurors who do report for jury duty are motivated to serve.
For the FJD Civil Trial Division, we have the advantage of historic City Hall, whose courtrooms have operable windows that facilitate ventilation. We use two courtrooms for each trial; one for the trial and the other as a room for the jurors to deliberate. The jurors now sit in the gallery, the attorneys sit at tables facing the jurors, and the witnesses sit alone in the jury box. The attorneys must look back or sideways to face the court, but we are now accustomed to it. The jurors have become the focus of our collective attention, which is the way it ought to be. (Since we are using the gallery for the jurors, we ensure public access by live streaming the court proceedings via Zoom). My staff and I are keen to retain elements of this jury-focused courtroom configuration for jury trials post-pandemic.
We also discovered that masks are not barriers to communication, as long as we have a good audio system. Contrary to what was once a popular belief, the use of masks does not seem to interfere with the assessment of witness credibility. The jurors focus on the substance of the testimony and make their judgments based on what is said, rather than trying to impute meaning to facial gestures. Masks may help prevent cultural miscues. I doubt that masks will remain in use once the need passes, but at least we know that they have salutary benefits in the courtroom.
At this writing, the number of new COVID-19 cases per 100,000 over a 7-day rolling period has declined and business is to return back to the “new” normal on July 6. I hope that, post-COVID-19, the courts will adopt some of the key innovations developed during the pandemic and continue our push to find new ways to help ensure the fair administration of justice.
About the Author
Hon. Stella M. Tsai was appointed to the Philadelphia Court of Common Pleas then elected in November 2017. Judge Tsai was a distinguished business litigation partner in the Philadelphia office of Archer & Greiner, PC concentrating in regulatory compliance, land use, and ethics. Ms. Tsai re-entered private practice after serving as Chair of Administrative Law at the City of Philadelphia Law Department from 2000-2003 where she managed the attorneys who represent the child welfare and social service agencies.