Retired Judge Jim Gray hasn’t let the pandemic stop him from "private" judging. The former Orange County trial judge conducted nine mediations and settlement conferences by Zoom since March when COVID-19 first emerged.
"I've settled eight of the nine mediations and I've found it really encouraging," said Judge Gray, who retired after 25 years and is now engaged in mediation and arbitration. "It was personal. I could bond with the people, the attorneys, the parties. It was private. It was effective."
He believes courts can do the same.
“The court system in California has responded politically,” Gray told the Southern California Record. “Incentives matter, which is not a surprise. So, if you have judges, clerks, bailiffs and court staff receiving full pay and benefits to stay home, that results in them strongly having an increased concern for 'safety' so that they don’t have to return to work."
Gray was responding to the fact that jury trials were suspended by executive order of Chief Judge Larry Alan Burns in the Southern District of California on March 17 but the order expires on Aug. 14 and has not yet been extended, which means jury trials could resume next week in San Diego federal court.
“There is zero reason why courts could not hold law and motion hearings by Zoom,” Judge Gray said in an interview. “The courts could even hold non-jury trials by Zoom. We do private arbitrations by Zoom routinely because we are in the private sector and we have balance. What you do not have in the public sector is balance. It is missing.”
The Court’s Strategic Committee on Resumption of Regular Court Proceedings has been preparing plans to resume jury trials, according to media reports.
Below are some of the protocols the committee has disclosed.
A public health doctor has approved preliminary plans to resume jury trials.
“It should be up to the jurors,” said Judge Gray. “It's my health and so I should be able to decline if I'm a juror. I learned early on in my jury trials that if somebody was determined not to sit for whatever reason, excuse them because they'd come up with some fanciful reason anyway, which would waste a whole bunch of time.”
Gray added that he thinks courts should take juror’s temperatures.
“The private sector would take their temperature before coming into the courtroom,” he said. “That's effective. You can do that non-invasively.”
A face shield, sanitizing wipes, jury questionnaire and sterilized pen and notepad will be provided to jurors in a plastic bag.
Mike Arias, an attorney and immediate past-president of the Consumer Attorneys of California, would rather see the court ask jurors to bring their own pad and pen.
“We all seem to be accepting that when somebody gives us something, it has been cleaned and sanitized but I think most people going into a courtroom will want to wear plastic gloves,” Arias told the Southern California Record. “I wouldn’t be touching anything that anybody gives me because I don't know where they've been, who they've touched or talked to.”
Overflow courtrooms will seat family members and press who will watch trials by livestream.
Arias foresees a problem with having anyone sit in a confined area when Gov. Newsom and public health officials have closed down restaurants because sitting in a confined area could increase the risk of exposure to the coronavirus.
“I don't think it's smart to do anything to exacerbate or increase the potential to be contaminated,” said Arias in an interview. “To me, now is not the right time.”
But Judge Gray believes the court could just as easily host overflow courtrooms with live streaming from outside.
“It would be a lot safer for them to be outside watching the trial,” he said. “There are places you could do this other than in an overflow courtroom. Why not in a parking structure or on the patio of the courthouse where there’s ventilation? It's called private sector creativity instead of public sector staunchness.”