By Michelle Casady

Law360 (May 19, 2020, 5:56 PM EDT ) Houston judges are turning to the attorneys who practice in their courts for feedback on in-person proceedings during the COVID-19 pandemic, asking them to weigh in on what a return to usual courthouse operations should look like.

The Harris County judiciary is circulating a 23-question survey through the Houston Bar Association. The judges are hoping the input will inform them how best to return to a semblance of normalcy, Harris County District Judge Kristen Hawkins, chair of the Harris County Board of Judges' Jury Committee, who helped craft the survey, told Law360.

"We have so many people come through the courthouses in Harris County," she said. "There's family and juvenile and civil and criminal [practitioners,] and we want to make sure all of them are comfortable coming back to the courthouse."

The survey will close Friday. A working group of judges who created the questionnaire will review the findings, Judge Hawkins said. The survey asks attorneys when they think in-person jury trials should resume, and how they'd feel about certain safety measures like the use of Plexiglas shields, wearing masks, answering health screening questions and having their temperatures taken.  

The opportunity to sound off about specific concerns is a welcomed one, said Bill Kroger, who is president of the Houston Bar Association and also chairs Baker Botts LLP's energy litigation practice group.

"It's good that the court is trying to get some feedback from lawyers on how they feel about doing trials and picking juries under different conditions," he said. "It shows they're trying to figure out a combination of things to try ... to try and get the courts moving forward."

Concerns over wearing masks in court — whether that would impact the ability to judge the credibility of a witness, or to select a jury — and questions about whether attorneys would be comfortable physically exchanging documents or arguing from counsel table are all touched on in the questionnaire.

For now, Harris County District Court judges are making their own decisions about whether to operate from home or from their courtrooms, Judge Hawkins said. It's hoped that by July, a grand jury can be seated and in-person proceedings can begin to resume, she said.

But obstacles remain, including significant damage from Hurricane Harvey, which flooded and rendered unusable the jury assembly room and large portions of the Harris County Criminal District Courthouse. Most of those criminal judges are still sharing courtroom space with civil judges in a building nearby.

Judge Hawkins said there isn't enough room in the courthouses for more than 60 potential jurors to gather with social distancing guidelines in place, far fewer than the 1,000 that could be held in the underground jury assembly room. That's not enough to supply Harris County's 85 courts with a big enough jury pool to get things truly back to normal, she said. She said the judges are looking for space alternatives.

Once the courthouses are open to the public again, other concerns will have to be addressed, like limiting the number of people in each elevator to two, and figuring out what that means for getting litigants, jurors and others into the county's larger ceremonial courtrooms that occupy the 17th and 20th floors of the courthouses.

Kroger said his advice to the decision makers is not to get overwhelmed with trying to overcome every possible obstacle as it relates to reopening fully.

"You don't have to have everything solved. You can start with one trial and see how that goes," he said. "You'll have a lot of learning from that and build from that. Taking some baby steps is going to be important before you scale up."

--Editing by Bruce Goldman.

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