When will the trial court in Philadelphia County be open for jury trials in civil actions? While a precise prediction is difficult given the existing state of our trial courts during the COVID-19 pandemic, what is known is that current medical risks of group gatherings make nearly impossible the in-person empaneling of juries of 12 anytime soon. The use of technology is likely permanently changing the landscape of civil litigation and even virtual civil jury trials are beginning to be conducted during the pandemic. This is occurring either by private agreement, or through the courts, as is occurring in Texas and most recently in Florida with its pilot virtual trial program in five of its trial courts. From the use of clear masks for the trial attorneys and witnesses, to the use of hybrid, combined, virtual and live jury trials, the complexities and exact manner of conducting a virtual trial by jury are real. The trial lawyer/director of the production must consider the medium’s unique challenges and opportunities when presented virtually.

The pressure is mounting to develop some interim trial solution for parties to pending civil litigation not only from the court system as backlog mounts, but also from litigants, both plaintiff and defendant, who seek prompt resolution. The size of the jury, the potential number of jurors empaneled during jury selection, as well as the conduct of the trial itself, raise significant challenges to the resumption of civil jury trials before an effective vaccine is found given the physical layout of many courtrooms. If justice delayed is justice denied, then overcoming the obstacles currently preventing the resumption of civil jury trials is a priority. The traditional system for the ultimate resolution of civil action disputes in Pennsylvania’s state courts is the 12-member jury trial system and implicit, as a necessary component of the system, is that the courts are open. The “open courts” provision of the Pennsylvania Constitution, Article I, Section 11, is unfortunately a short-term casualty of the pandemic. Section 11 provides: “All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay,” 40 P.S. 1303.101-1303.910, Yanakos v. University of Pittsburgh Medical Center (UPMC), 218 A.3d 1214 (Pa. 2019, Opinion by Mundy, J.); Yanakos v. UPMC, 224 A.3d 1255 (Pa. 2020, Reconsideration Denied). While there is no doubt speedy trial considerations in the criminal context will require deployment of court resources at least in the short term, civil litigants are guaranteed a right to disposition of their cases consistent with due process.