Since the emergence of the COVID-19 pandemic, many of Nebraska’s civil litigants have faced an uncertain future about when they may have their day in court. While courts were able to make progress towards returning to business as usual after the initial nation-wide shut down, the present surge in COVID-19 cases throughout the state has resulted in inconsistent and ever-changing responses throughout Nebraska. It will be impossible to predict what further issues may arise in light of the COVID-19 pandemic, but this article sets forth the current status and responses of courts throughout the state for civil jury trials and considerations for when civil litigants can expect to have their case tried.
Jury Trials in the United States District Court, District of Nebraska
At the start of the pandemic, the District of Nebraska canceled all jury trials from March 2020 through the first week of July 2020. Recently, the District of Nebraska issued an Order that again canceled all jury trials scheduled to begin on or before December 1, 2020, pending further order of the Court.
To access all judicial orders issued by the District of Nebraska can be accessed by visiting the United States District Court, District of Nebraska’s website.
The Initial Response to COVID-19 by Nebraska State Courts
At the outset of the pandemic, the Nebraska Supreme Court mandated that no courts in Nebraska were permitted to fully-close, but it left the decision of how to manage courtroom proceedings to the discretion of each judge. During this time, courts effectively managed case progression by holding proceedings electronically or in a socially-distanced manner. However, safety concerns from calling jury panels led to courts taking a mostly uniform approach in cancelling all criminal and civil jury proceedings, starting at the end of March. Courts were unable to resume holding jury trials until June with most waiting until July. Even when courts did resume jury trials, however, most courts were subject to limited capacity based on the public health circumstances of their local communities.
The Current Status of Civil Trial Delays in Nebraska State Courts
In light of the recent resurgence of COVID-19 cases throughout Nebraska, combined with a November 6, 2020 Order from the Nebraska Supreme Court, some judicial districts have again begun providing uniform information to the public on the status of proceedings in their courts. Many judicial districts, however, have not provided any uniform guidance and left the decision on court proceedings to the discretion of individual judges.
As of the publishing date of this article, Nebraska’s civil jury trials are experiencing the following delays in select districts.
Fourth Judicial District (Douglas County)
The district and county courts have canceled all jury trials and the county court has also canceled nearly all other proceedings from November 9, 2020 through January 1, 2021. See Nov. 6, 2020, District Court Order; Nov. 9, 2020, County Court Order. The district court had previously issued a schedule for limited jury selections by specific judges each month from July 2020 through December 2020 and January 2021 through June 2021. See various Orders. While the Douglas County District Court had attempted to conduct jury trials pursuant to this schedule, a number of jury trials that were able to be initiated had to be canceled because of COVID-19 exposures to the proceedings. It was recently reported that only two jury trials have been completed in Douglas County since March.
Third Judicial District (Lancaster County) (revised 11/18/20)
Criminal jury trials were able to resume in Lancaster County in July and civil jury trials were able to resume in August. Lancaster County courts had generally been able to return to operating at full capacity, but on November 17, 2020, the County Court of Lancaster County entered an updated Order announcing that all civil and criminal trials would be suspended until at least January 4, 2021.
Sarpy County (part of the Second Judicial District)
The county court is currently operating at full capacity for jury trials at this time. The district court generally resumed jury trials in August and are in the process of catching up on criminal jury trials that had been cancelled.
Hall County (part of the Ninth Judicial District)
The Hall County District Court recently entered an Order cancelling all criminal jury trials scheduled for November and December 2020. See Nov. 10, 2020, District Court Order.
Seventh Judicial District (Antelope, Cuming, Knox, Madison, Pierce, Stanton, and Wayne Counties)
The district and county courts provided an updated Order indicating that in-person proceedings will continue with additional safety measures. See Oct. 22, 2020, Joint District and County Courts Order.
To access all judicial orders regarding COVID-19 issued by Nebraska state courts and judicial districts, visit the State of Nebraska Judicial Branch website.
Effect of Court Responses and Additional Causes of Delays for Civil Jury Trials
The ultimate effect of these delays will inevitably be dependent on the general case load of each county’s courts and how quickly and fully each court is able to resume its normal jury trial schedule. Courts have continued to effectively advanced cases before them to the trial stage, but a potential bottleneck at the jury trial stage could be compounded by several factors:
- Jury Selection: Though jury trials were generally able to resume throughout the state in July, safety precautions in jury selection substantially limited the volume of jury trials able to be held. These limitations include: more extensive advanced jury questionnaires, jury selections needing to be moved from courtrooms to auditoriums, and canceling jury trials before conclusion due to reported COVID-19 exposures. The most drastic of these limitations can be seen in the Douglas County District Court with its limitation on specific judges that can hold jury selections each month.
Until courts can return to conducting jury trials at 100% capacity, delays will continue to compound.
- Right to a Speedy Trial: Because a criminal defendant has a right to a speedy trial, judges must ensure that some postponed and previously scheduled criminal jury trials are conducted without consideration of pending civil matters. So, civil jury trials and other proceedings will be subject to on-going delays until courts are caught up on criminal jury trials.
Civil jury trial delays may often exceed the amount of time that all jury trials were continued in a district.
- Court Caseload: Before the pandemic, normal caseloads in courts throughout the state saw civil jury trials being set months out from when they would otherwise be ready. Consequently, court calendars for the first half of 2021 are already partially filled with scheduled jury trials.
Continued trials will have to be fit into courts’ existing schedules, compounding the delay to when continued jury trials may be rescheduled.
When Will My Jury Trial Occur?
The answer to this question will depend largely on the county and court a civil case has been filed in and whether cases of COVID-19 continue to rise in Nebraska. For instance, some courts in more rural and suburban areas of the state are currently operating at full capacity with only rescheduling delays for civil trials of a couple months, while courts in Douglas County were barely able to resume any jury trials before being forced to again suspend all trial proceedings. Lancaster County courts were an example of courts that had been able to resume conducting civil jury trials mostly as scheduled but were then forced to abruptly suspend all trial proceedings in the County Court because of a spike of COVID-19 cases in the county.
At this time, it is expected that continued civil jury trials will be able to be rescheduled for the Spring or Summer of 2021, but they may be delayed into late 2021 or 2022 in places like Douglas County. Civil jury trials yet to be scheduled but expected to be ready for trial in early 2021 will, in many cases, not be able to be scheduled until mid-to-late 2021.
Currently scheduled civil jury trials still have a good chance of occurring as planned, but may be continued due to factors such as the rescheduling of a more pressing criminal trial, limited capacity for jury trials, or a persistent or future resurgence of COVID-19.
Author: Karson S. Kampfe
This article has been prepared for general information purposes and (1) does not create or constitute an attorney-client relationship, (2) is not intended as a solicitation, (3) is not intended to convey or constitute legal advice, and (4) is not a substitute for obtaining legal advice from a qualified attorney. Always seek professional counsel prior to taking action.