Reopening Texas Courts: Plans and Challenges for Resuming In-Person Court Proceedings

Episode Notes

Transcript

Intro: Welcome to the State Bar of Texas podcast. Your monthly source for conversations and curated content to improve your law practice. With your host, Rocky Dhir.

Rocky Dhir: Hi and welcome to the State Bar of Texas podcast. So many litigators in Texas have hit their stride. They attend hearings and mediations with zero commute time all from their home offices or well, nowadays they’re office, offices. We’re getting more adept with the technical aspects of presenting evidence on Zoom. We’ve gotten our Zoom faces just right my normal face is not much better than my Zoom face so there’s that. But we have the proper lighting in place now, we’ve made sure to get robust internet connections to handle all this bandwidth. We finally learned what the word bandwidth means. It’s a brave new world and we’ve conquered it. We’ve been like the soldiers storming the beaches of Normandy. Maybe we didn’t save Private Ryan but we did save Private Practice and more importantly. We managed to serve justice in the midst of unprecedented adversity. So, imagine how poetic it is that on June 7, 2021, the day after the anniversary of D-day, the Dallas County courts are going to reopen for Civil Jury Trials. Yes, it’s true. All that work and effort and now we’re going to go back to where we started could it be? I wanted to get to the bottom of this. So, I decided to speak with Judge Maricela Moore. The local administrative judge for Dallas County and the presiding judge of the 162nd judicial district court. She also served at one point as a presiding judge of the central jury room. The American Board of Trial Advocates actually named her 2019’s Dallas judge of the year. She used to practice commercial litigation before ascending the bench.

So, I figured who better. She would be the one who could give us some answers as to what’s going on. Now, Judge Moore and I are both members of the Mac Taylor Inn of Court in Dallas. So, when I contacted her about being on this podcast, she knew exactly who I was. She agreed to do the podcast anyway. She apparently cares about justice enough to put up with me for even a few minutes. So, Judge Moore, welcome. Thank you for being on the podcast.

Judge Maricela Moore: Well, that is certainly my favorite introduction ever, Rocky. You make even a resume sound exciting. I don’t know how you do that.

Rocky Dhir: I wish I could help my own resume. It’s great to have you on. I know you’re probably very busy. So, June 7th — I mean, that’s fast approaching and it’s about a week away from our listeners being able to tune in. So, tell us what’s going to be happening? Am I going to be able to find parking at the George Allen Courts Building or am I still going to get door dings all the time?

Judge Maricela Moore: Well, I think of all of your concerns, parking will not be one of them. Let me give a very brief summary of what our plan is and then I think we need to walk into some of the challenges that we are now facing given Governor Abbott’s most recent executive order and whether or not that’s going to impact our ability to make this plan work. Something that is very timely. The idea that we have and this is specifically the plan for the George Allen Courthouse. The Frank Crowley Courthouse had a Trial at the end of April. They had a second one in May and they have a separate plan for how they’re going to resume Jury Trials. Obviously, criminal courts have different constitutional concerns than we have here in George Allen.

Rocky Dhir: I think you hinted at this just for those that aren’t familiar. The Frank Crowley Courthouse is the criminal courthouse in Dallas County. So, when we talk about George Allen, we’re talking about the civil.

Judge Maricela Moore: Correct. So, Frank Crowley is the home to all of our criminal courts. The plan that we’re going to talk about here will govern how the civil district courts, the civil county courts, probate, juvenile and family courts will begin to resume in-person Jury Trials. The plan basically allows the courthouse to summons one veneer panel each day to the central jury room so that one court can pick a jury each day. In other words, we may have 25 courts or more. We’re going to pick one jury each day even giving us just one a day. We’re going to try a lot of cases pretty quickly beginning on June 7th. The way that we as all the presiding judges came together to work on a plan that we think will allow jurors to safely re-enter the courthouse in numbers that will allow still for social distancing and mindfulness that we still are in the pandemic. The central jury room in our courthouse is on the first floor and this is very important because by bringing the jurors into the central jury room rather than into courtrooms throughout the building, the veneer panel never has to use the elevators. We don’t need to worry about lobbies and waiting areas.

00:05:14

Essentially what will occur is the jurors will be summoned to the courtroom after filling out an extensive COVID questionnaire so that we make sure even before they enter that room that we are not exposing anyone unnecessarily to any COVID-19 concerns. The presiding judge which is on the calendar for that day and I will specifically say on June 7th our first Trial, our great Judge Tillery of the 134th that’s going to be his panel. So, he will be in the central jury room. Those jury panelists that are summoned will go down and meet with them. He will go through the COVID issues with them and he will get right to work picking a jury with the lawyers that are called to Trial that day in the central jury room. Once that happens, Judge Tillery will then excuse those panelists that have not been selected. The 12 perhaps 13 with an alternate will then go upstairs to the 134th and will proceed with the Jury Trial in his courtroom. So, there’s your one Jury Trial happening in the George Allen building on June 7th. On June 8th, the next day, on our calendar Judge Moye of the 14th District Court, it’ll be his veneer panel. And he will go through that same process so that a Trial will proceed in his courtroom which is on a different floor on a different wing of the courthouse. We’ll have a second Jury Trial going on and that will occur every day between June 7th and July 30th. So, we have a plan that takes through the first eight weeks that will essentially allow us to pick 40 juries during that time.

Rocky Dhir: Now, what happens let’s say in theory, all the courthouses — I’m sorry, all the court rooms I should say are have Jury Trials going on at the same time. You could theoretically have multiple sets of jurors using the elevators, using the escalators, going back and forth in the parking garages. Is there a plan for that or is that just — are we at the tolerable levels of interaction that we deem safe?

Judge Maricela Moore: Well, we are not at the tolerable levels of interaction and so we’ve planned for that in this way. The judges are committed to beginning this process calling one to two-day smaller cases, we have a lot of small commercial cases, motor vehicle accident, personal injury cases that need to be tried. These eight weeks is not going to be the time for the one-week med mal case or your two-week products liability case. We’re going to get to those cases but not in the first eight weeks. The idea is we have calendared all of these Jury Trials in a way that they are on separate floors and separate wings of the courthouse so that if we’re all trying one to two day Trials, you’re not going to have juries all over the place at the same time because your sixth floor Jury Trial will be over by the time the next sixth floor west wing jury is summoned.

Rocky Dhir: So, this is not just incumbent upon the judges to manage this, the lawyers in these cases are going to have to stick to these timelines in order to make this entire process work.

Judge Maricela Moore: We’ve made very clear at least in my docket calls I tell the lawyers look; we are working very hard to get everyone back up to Trial. So, if you have a one to two-day case when you tell the court how many witnesses you have, I’m going to hold you to that. These are going to be probably some of the most efficient Trials we’ve ever seen and I think that the lawyers invite that because they do want to get back to Trial and we all know that this is going to require a collective commitment to how we’re going to do this effectively, mindful that we need to respect the fact that these jurors are coming down here under a court order to serve. It would be irresponsible for us to have a plan that does not have the right social distancing and other protections so that we are not exposing anyone to any health or safety concerns.

Rocky Dhir: Is there any talk or thought or rumors flying about vaccination? Are we checking vaccination situations for other jurors or for lawyers or anybody else or are we leaving that up to individuals and not asking that question?

Judge Maricela Moore: That’s a great question, Rocky. And I will tell you that in the past couple of days, the answer to that question seems to become less predictable and unknown and let me tell you why.

00:10:11

On the Dallas County’s website, you can find a very extensive document that goes through protocols and procedures that I as the LADJ put in place under the Texas Supreme Court’s mandate to me to do so. So, the Texas Supreme Court said every local administrative district judge must implement protocols, policies and procedures before you can engage in any in-person proceedings and so I did that. Those procedures include such things as masking requirements and social distancing. Well, as we all know, the governor just a few days ago issued an executive order that prohibits public officials and government entities from mandating masks. That is somewhat of a quandary for the judiciary because it is unclear from the executive order whether or not the governor intended courts to be underneath that mandate.

It’s a conversation that would fill up this entire podcast so I don’t want to go into all of the legal authorities and debate about that but the reason that that impacts our plan and your specific question is that prior to that executive order, my plan was to require masks in the courtroom unless an individual demonstrates proof of full vaccination and it would essentially look like this. My wonderful bailiff, Bob who really keeps everything in check would be at the courtroom door and would say, “you can either show proof a full vaccination and I don’t want a conversation really to occur about. Well, could it be fake proof.” We’re in a court of justice. We assume people are honest. Someone has a vaccination card; you don’t need to wear a mask. Someone says, “I don’t want to tell you if I’m vaccinated.” “Thank you, sir, here’s your mask.” Someone says, “no, I had my first shot, not my second.” “Thank you ma’am, here’s your mask.” That was the way that I was intending to protect this courtroom. There is a question now whether or not that policy and that practice can be imposed given Governor Abbott’s very direct comment that government officials if they mandate masks can be fined up to a thousand dollars.

Rocky Dhir: Sure. In full disclosure for the listeners, we’re recording this on May 21, 2021. So, it’s a little ahead of when you’re going to be listening to this actual episode. So, it’s possible that between now and June the 1st when you’re listening or after June the 1st when you’re listening. Things may have changed further. So, if you’re listening in on this, please do take a look and see whether and to what extent what Judge Moore is telling us could have changed or in some way been amended. So, I want to put that disclaimer out there so people don’t come up to you later on Judge Moore and be like, ”wait, you told me this on the podcast and so here it is.” So, obviously, this is raising questions that from your seat you don’t know the answers too yet as to what this means for vaccination and proof and it looks like you can’t even mandate masks at this point as far as you know. So, it’s got to just be — I guess the only thing you can do is social distancing? Is that?

Judge Maricela Moore: Well, the reason I don’t want to answer that question is that I don’t want to presume that the courts can’t mandate masks because like I said, whether or not Governor Abbott can control the way I preside over my courtroom is a legal question yet to be determined. I think that the courts have gone to great lengths to put in place really practical and responsible practices that will protect those that come to the courtroom. Look, the reality is we are all dying to get back to Jury Trials. I cannot tell you how much I miss working with our jurors. For many of us as presiding judges, our favorite part of the job and so we have Plexiglas throughout the courtrooms. They’re going to look differently than they did prior to COVID when lawyers come back and we have different ways of setting up the courtroom with social distancing and so this one particular issue regarding masking and vaccinations like you said, Rocky it’s still kind of yet to be determined but I can say with confidence we’re going to be up and running on June 7th and the courtrooms will be safe.

Rocky Dhir: Which you talked about kind of takes us into maybe a slightly different topic which you might actually be happy about because what you’re talking about right now sounds like it’s a pretty thorny issue that you’re working through. So, let’s maybe take a break from that for a moment and talk a little bit about this interplay between the whole virtual law practice where everything’s on Zoom and then you just talked about going back to in person and how everybody wants to go back to the way things were. Do you think we’re going to come to a point when we just discard our Zoom creds and we go back to exactly the way things were or do you see kind of a new new normal, if you will?

00:15:18

Judge Maricela Moore: I do not believe we will ever discard the lessons learned from Zoom. I think there’s a very well-known “never let a crisis go to waste” and I think that comment resonates with what we have been through and how we have learned efficiencies within the judicial system by utilizing video conferencing. There is a lot of debate about the use of Zoom. I do not think there is any disagreement that there is a place for video conferencing within the courtroom. Everyone agrees. I will tell you I have yet to meet a presiding judge who does not think there will be a place for video conferencing post COVID-19 times. The real question in the debate is what is that proper place.

Rocky Dhir: That was my next question to you. So, go ahead. Run with it.

Judge Maricela Moore: I think the school of thought falls into two camps. There are some that are of the opinion that video conferencing is an effective way to bring the judge and the litigants together on matters that do not require evidentiary hearing. That can be anything from a Motion for Summary Judgment, a Motion to Continuance, docket call, Status Conferences, discovery disputes in the midst of a deposition. So, that is all your non-evidentiary use of video conferencing and then there are camps that are of the opinion that video conferencing is a proper tool to use when you have the credibility of a witness at issue. There are some that think it is just fine to have Rocky sitting in his office testifying before Judge Moore who I’m sitting here in my courtroom. I will tell you I am not of that camp. I do think that there are some great efficiencies using video conference. I’ll give you a specific example, every Tuesday, I hold docket call. I can have 40 lawyers on a video conference at 9:00 or 10:00 o’clock in the morning on a Tuesday. I run through every single case. I find out the status. Have you mediated? Are you ready for Trial? Are there any matters pending that haven’t been ruled on? And all of those lawyers tell me, this is the greatest thing because as you said Rocky, you don’t have to worry about parking.

Rocky Dhir: There’s no commute time. You can do one here and then another one in Collin County and then do another one in Harris County if you need to, right?

Judge Maricela Moore: Absolutely. And there really is no reason why I need to fill my courtroom, fill the parking garage, load up a bunch of lawyers in security line to come up here to talk to me for five minutes about whether they’re ready for Trial. That all needs to be done by video conference and that’s how I will continue to do it even post this time.

Rocky Dhir: I’m even thinking about attorney’s fees because it’s a pretty well-established practice to charge for the time that you’re at the courthouse waiting for your name to be called up, for your case to be called up so that you can go and spend three minutes getting a continuance and now all that time is knocked down and you’re really just charging for the three minutes that you were talking to the judge about the continuance.

Judge Maricela Moore: Or take this example which happens frequently, Rocky. Let’s say I’m in a Jury Trial. Whenever I’m in a Jury Trial, my jurors take priority over everything else because these are citizens who are down here and I’m not going to waste their time. So, let’s say we’re in a Jury Trial and I have a hearing set at 11:00 o’clock on a Motion to Compel and you know at 11:00 o’clock, we weren’t ready to take a break because we still have a witness on the stand. So, now you have lawyers sitting waiting perhaps 30 minutes or even longer in the courtroom because I’m not going to take a break in my Jury Trial for a Motion to Compel. Well, let’s take new time and Melinda, my coordinator while I’m in Jury Trial sets my non-evidentiary hearings as I just described all on video conference and so she can manage in the background council judge is still in Trial, the Zoom hearing’s going to proceed but you’re going to have to come back in 20 minutes or can you hold off and the lawyer says, “well, there’s no problem with this because I can work on another case. I can come back. I’m not sitting in a courtroom wasting my client’s resources” because you’re in Trial. And so, now, I’m able to navigate between many more cases much more efficiently. And those are the kinds of things we never thought of doing before COVID.

00:20:06

Rocky Dhir: And as I mentioned in the introduction, you and I are in the same Inn of Court and so we’ve had this discussion about virtual Jury Trials and we’ve had that discussion in our Inn. You and I have talked about it. So, I’m familiar with your position and I’m often ought to do, I try to play devil’s advocate and see if there’s the other side to it. So, if you don’t mind, I want to talk for a second about this fact-finding function where you’re sitting as fact-finder not the jury but you as judge. Now, if you’re trying to gauge my credibility — you know me well enough to not give me much credibility but if I was a witness in your court and you’re gauging my credibility even on Zoom you’re able to see me, you’re able to see if I’m fidgeting, you’re getting a straight up view of me as opposed to seeing me maybe from the side when you’re on the bench. There’s arguably some — I should say, there are some arguments in favor of saying, “look, the judge if he or she feels capable and comfortable, can make a credibility determination even on Zoom.”

Judge Maricela Moore: Let me explain to you why I disagree with that position and first of all I will tell you it is not just my opinion because I just have something against that process. I’ve had dozens of non-Jury Trials during this time by Zoom and I’ve taken my experience from what I have seen and applied it to what I now think is where Zoom can and cannot work and for these specific reasons. First of all, it’s not just my acting as fact-finder looking you in your office and trying to decipher your movements or your credibility, it’s the institution. When someone walks into the courthouse, something changes about the way they feel, about the process they’re about to engage in.

Rocky Dhir: It’s the psychology of it in another words.

Judge Maricela Moore: It’s the entire institution. I often say I may be the presiding judge but the respect you give me is not because of Maricela Moore. The respect is for the institution I’m serving and we need to keep that at the cornerstone of our justice system that it is the courtroom where you walk in, you take an oath to tell the truth, you’re standing right in front of the judge, you see the flag and all of that culminates into an experience that then invites honesty and then allows the fact-finder to get to the best position to determine the credibility and the facts as decide them. I have seen and it’s very unfortunate not just witnesses but lawyers in this element that just simply are not respecting the institution in the same way when they’re not in this room. I have chosen to continue to preside over court here in this courtroom. So, even though we’re on Zoom in my hearings, I sit on my bench, I wear my robe, I have my bailiff, I have my staff and the reason for that is I believe in the institutional process, there’s something about when I put my robe on people look at me differently. If I were sitting at home at my dining room table as we’ve done presentations together, it’s just different and so my comment is there is a lot of talk about, “well, it’s so much more convenient for the jurors to do it from home. It’s so much more convenient for the witnesses not to have to go down to court” but at some point, let’s not sacrifice the sanctity of the process for convenience because I think that that’s where I personally draw the line. We need to have fact-finding and Jury Trials and those kinds of processes in the courtroom that that’s just the way that I see it is best. This system deserves our time in those particular moments.

Rocky Dhir: Now, talking about juries for just a moment. This kind of goes back to the first topic we talked about in terms of the safety protocols and all of the precautions that you and the other presiding judges have clearly given a lot of thought to. Do you think there’s going to be any kind of backlash from potential jurors? Are they going to balk at the idea of coming into a courthouse? Do you anticipate some might even — cite that as a reason why I don’t want to serve on a jury or I don’t want to fulfill my jury duty, I’m uncomfortable with the idea of going anywhere during COVID-19. How have you thought through that issue?

00:25:07

Judge Maricela Moore: It’s something that is very — it keeps me up at night. This idea of whether or not people will show up. So, I look now again at experience. Prior to COVID-19, we — and this is not something we’re proud of but Dallas County was at an 18% show rate meaning that only 18% of those that received summons actually came down to serve. So, when the first jury was summoned to the criminal courthouse, the first thing we looked at was what percentage of people actually came down. Interestingly, that percentage was 20% and statistically that 2% in my mind I would not make the comment that more show up now but what I would say is fewer are not showing up and so I think it –

Rocky Dhir: Probably just bored, they wanted to go somewhere.

Judge Maricela Moore: Yeah, maybe. It’s been long for a while.

Rocky Dhir: Like leave the house and nobody can yell at me for it. This is fantastic.

Judge Maricela Moore: They’ve run through all the Netflix streaming they thought I’ll go down and serve on a jury.

Rocky Dhir: Like I watched Cobra Kai now I’m going to go and serve on a jury and maybe they’ll have curbside jury service. Let’s see.

Judge Maricela Moore: So, I am very cognizant that that is a consideration. We need to make sure that those that come down to serve, reflect the proper diversity of our communities. We need to make sure that we have a significant number of people coming down but we won’t yet know the true answer to that question, Rocky until we start summoning them down and we can look at the numbers. I am confident though that what I am seeing from the few juries that have been summoned, the show rate has not decreased. So, that is a good thing.

Rocky Dhir: Yeah. We’re not doing any worse than we were before that’s I guess maybe the way to put it. We have just a few minutes left and I would be remiss if I didn’t ask you to maybe opine or maybe advice the practicing litigators out there as they prepare for June 7th. What do you think they need in order to get prepared and what mindset do they need to have for this new new normal? You’ve already talked about how we’re going to be taking some aspects of our pandemic experience forward even after things fully reopen. So, what advice would you give to lawyers on how best to prepare themselves and prepare their practices for the way things are going to look both on June 7th and moving forward?

Judge Maricela Moore: Well, I think a lot of the preparation. We’ll have to have a wait and see to determine how this masking conflict plays out between the governor and the judicial bodies and the reason I say that is whether or not masks will be required in the courtroom is yet to be determined. Lawyers need to be prepared though to try very efficient cases you need to be prepared. Judges are going to be very impatient with lawyers that say, “my witness isn’t ready” or “things have changed in my case,” please don’t come with a request for a continuance because that is just going to fall on deaf ears. We’ve had so much time to get to this point. You will find in the George Allen Courthouse, we are going to call and make a greater number of cases ready for Trial because in case the first couple starts settling which I have a feeling they will. We want to have enough right down the line so that one is used and we don’t waste any of these jury panels since we’re only going to have one court allowed to utilize that jury panel on a given day. So, my comment would be get ready for Trial and get ready to try your case as efficiently as possible. Make sure your witness testimony is concise because you will find that the judges are really pushing that we don’t waste any time of the court or of the juries.

Rocky Dhir: Interesting. Well, Judge, we’ve reached the end of our time. There’s still so much more to talk about and I imagine we may be revisiting this subject later in the summer and kind of get a chance to see how it’s doing. Do you know what other jurisdictions are doing in Texas? Are many of them opening on June the 7th or is Dallas County the first?

Judge Maricela Moore: That is our date. I am not sure. Other counties have done things differently throughout. Houston had in-person Trials stopped for a while and I think they may be resuming. We selected that date for a variety of reasons. There were some specific discussions that we had with Dallas County’s Health and Human Services. We’ve been in working very closely with Judge Jenkins and Dr. Wong and it was because of what we were hearing from them regarding vaccinations and this goes back way February, March we had these conversations.

00:30:02

Rocky Dhir: I’m sure that started early on.

Judge Maricela Moore: Yes. And they were right essentially. What they were telling us was going to happen by June has effectively happened in terms of our vaccination rates and our cases. Our cases are way down and so –

Rocky Dhir: Yeah. Knock on wood.

Judge Maricela Moore: Knock on wood.

Rocky Dhir: Don’t jinx us. Don’t jinx us.

Judge Maricela Moore: So, everything that we crossed our fingers and planned to happen so that June 7th was a good date for us has happened so far.

Rocky Dhir: Oh, good. Well, hopefully it continues that way and Judge Moore, I want to thank you so much for giving us the sneak preview prior to the June 7, 2021 theatrical release of the newly partially reopened Dallas County Civil Courts. Thank you for taking time out for us.

Judge Maricela Moore: Well, it’s always a pleasure to talk to you, Rocky and anytime you want another update, you know where to find me.

Rocky Dhir: I do. And you’ll do it anyway which is great. And, of course, to all you listening, I want to thank you for tuning in and I want to encourage you to continue to stay safe and be well. If you like what you heard today, please rate and review us in Apple podcast, Google podcast or your favorite podcast app. Until next time, remember, life is a journey, folks. I’m Rocky Dhir, signing off.

[Music]

Outro: If you’d like more information about today’s show, please visit legaltalknetwork.com. Go to texasbar.com/podcast. Subscribe via Apple podcast and RSS. Find both the State Bar of Texas and Legal Talk Network on Twitter, Facebook and LinkedIn or download the free app from Legal Talk Network and Google Play and iTunes. The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by the State Bar of Texas, Legal Talk Network or their respective officers, directors, employees, agents, representatives, shareholders or subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

[Music]