By Bill Wichert

Law360 (May 29, 2020, 6:38 PM EDT ) The ongoing ban on New Jersey state jury trials due to the COVID-19 pandemic could make a bad situation even worse for courts already facing judge shortages as they struggle to get through the cases piling up during the crisis, leading to further gridlock in Garden State litigation.

When the trials ultimately resume — a conundrum facing attorneys and court officials — state judges may have less time to spend on other civil matters or they might be reassigned to handle criminal trials, experts said. Those concerns loom as state Superior Court vacancies recently reached more than 10%.

Timothy J. Ford of Einhorn Barbarito Frost & Botwinick PC sees the anticipated trial backlog as a "perfect storm" on the horizon.

"Between the shortage of judges, the pandemic and cases are getting delayed, the potential that some judges may be reassigned to criminal to handle the backlog ... that's what could lend itself to substantial delays and inabilities for people to get reasonable trial dates, which have already been extended," Ford said.

Given speedy trial requirements for criminal cases, such cases are expected to be the top priority when jury trials start up again, heightening the need for judges in the state's criminal division, attorneys said. Even judges who remain in the civil division, however, may need to pay greater attention to civil trials and have less time for motions, experts said.

"My fear is the backlog of trials ... whenever jury trials start again, is going to require so much attention from the judges that it's probably going to have an effect on how other matters proceed in terms of motions and things that normally would be getting done sooner rather than later," said Keith McDonald of Norris McLaughlin PA.

Jason R. Rittie of Einhorn Barbarito noted that some state courts had been facing a trial backlog before the pandemic due to the judicial vacancies.

"Some of those courts were already struggling trying to manage their jury trials because they just didn't have enough judges available, which is still an issue for some courts," Rittie said. "I think this pandemic's going to make it even worse because you have less judges still."

"Now you're going to have a backlog of cases that were already on some other backlogged cases before that," he added.

Amid various measures to prevent the spread of the novel coronavirus within the state court system, New Jersey judiciary officials barred new civil or criminal jury trials more than two months ago. Meanwhile, 55 of the 463 seats in the state Superior Court, including trial and appellate posts, were vacant as of early May, a judiciary spokeswoman said.

Even while state courthouses are closed due to the pandemic, judicial vacancies are being created as judges retire, according to state Sen. Nicholas P. Scutari, D-Union, an attorney and the chairman of the Senate Judiciary Committee, which considers judicial nominations before they head to the full Senate.

Filling open judicial seats amid the crisis, however, is "virtually impossible," Scutari said.

"It's hard for me to pick a judge and go, 'Yeah, I'm confident in that person. I've never even met them other than on the phone,'" he added.

The senator said efforts are underway to have judicial candidates on "the launch pad" when courthouses are slated to reopen.

"We're not doing as much as we could," Scutari said. "We're trying to get the process continued, even though it's pretty much come to a screeching halt, so there will be some judicial candidates ready to go."

But the return of jury trials in New Jersey — an event seemingly at odds with social distancing recommendations aimed at curbing the spread of COVID-19 — is uncertain. The New Jersey Supreme Court on Thursday ordered that new jury trials remain prohibited, among other virus-related measures.

"I frankly don't know when you're going to see a civil jury trial in the Superior Court again, and I think that's the question that a lot of practitioners on both sides of the equation have," said John C. Garde of McCarter & English LLP.

"How it gets resolved in such a way that the public — the people who are sitting on the juries — are confident that they're going to be safe is a big issue," Garde added.

Vito A. Gagliardi Jr. of Porzio Bromberg & Newman PC noted that the "entire premise of a trial is for the trier of fact, often a jury, to measure the credibility of the witnesses."

"I don't know how you do that over Zoom," Gagliardi said, referring to the videoconferencing platform.

"Public health and a fair and acceptable system of justice are so core and yet incompatible at the present time," Gagliardi added. "How to reconcile them, if they can be reconciled at all, is the big issue."

"It's possible that there are a lot of smart people thinking about it, but we haven't heard any plan floated, because this ... may be the greatest Rubik's Cube that we can imagine, certainly in our lifetime, about those two issues, where you have to weigh health on a massive scale and the fundamental tenets of our justice system," he added.

The state judiciary is developing such a plan for resuming jury trials, one aimed at balancing the health and safety of the people who come to the courthouses and the needs of parties that require court services, according to former state Appellate Division Judge Glenn A. Grant, who is now acting administrative director of the state courts.

"To the extent that we can balance those two things, whether it's remotely or whether it's in court, that's how we'll be designing our plan," Judge Grant said.

While challenges lie ahead, Judge Grant said he remains "confident in our ability."

"We have survived challenges in the past and this is no different," he added.

But until scheduled trial dates are looming on their calendars, parties will feel less pressure to reach settlements, causing cases to hang around, attorneys said.

As Gagliardi put it, "our system breaks down without there being a mechanism for final resolution, if efforts at negotiation and mediation and those sort of things fail."

"I think the motivation for those other alternatives has been diminished and, without the imminence of a trial, you're going to see cases languish," Gagliardi said.

--Editing by Emily Kokoll and Kelly Duncan.

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