In two recent oral orders, Chief Judge Stark provided some insight into how he is scheduling bench trials in 2020. In both cases, Judge Stark indicated a willingness to hold "remote" bench trials. While the question of whether and how jury trials will proceed in 2020 is still very much open, it appears that Judge Stark is continuing to move forward with bench trials, and investigating practical solutions to problems posed by Covid-related restrictions.
On June 24, Judge Stark issued an oral order in AO Smith Corp. v. Bradford White Corp., 18-412-LPS, stating that he could not accommodate a request to move the bench trial to September 21 or October. Judge Stark offered a few other slots in July, August and September of 2020, with the September slot consisting of three full days, followed by "late afternoon/evening sessions . . . until the conclusion of trial."
Judge Stark noted that he is "giving serious consideration to ordering this trial to be a remote trial, whenever it occurs."
The next day, in H. Lundbeck A/S et al v. Apotex Inc., 18-088-LPS, Judge Stark provided more detail regarding what the parties to that case might expect in terms of a "remote" bench trial. He first indicated that five jury trials were currently occupying the same slot as the Apotex trial (October 13-23, 2020), and that the next open calendar slot with five or more "largely consecutive, largely uninterrupted trial days" was in 2021. As in AO Smith, he indicated a willingness to conduct the trial after hours or on non-consecutive days to fit it in during 2020. Regarding a "remote" trial, Judge Stark outlined two options:
"[T]he Court will be considering the possibility of conducting this trial remotely (where only court personnel - and no attorneys or witnesses - are in the courtroom) or partially-remotely (where a small number of lawyers and some of the witnesses are in the courtroom but most participants appear remotely)" [emphasis added]
These two rulings, and others issuing nearly every day, provide some guidance regarding the scheduling of bench trials in 2020 and beyond. Parties expecting to schedule bench trials in the next six to twelve months should be prepared to discuss abbreviated trials, remote trials, and non-consecutive trial periods, in light of ongoing Covid-related challenges.
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