Historically, a civil litigant in a Virginia Circuit Court could expect a trial date within a year or so of service ofthe lawsuit. For plaintiffs and defendants in civil litigation, the trial dates drive the action in the lawsuitand move cases toward resolution.
The uniform pretrial scheduling order calls for expert witnesses to be disclosed by the plaintiff 90 days before trial, and by the defense 60 days before trial.Until the trial date is on the horizon, the strengths and weaknesses of a complex civil liability case involving experts are often quite variable. And with unknowns,neither party is typically inclined to give serious consideration to a negotiated resolution in close cases.
For most people and companies, a civil lawsuit is a business problem, economic burden, and life stressor in addition to a legal problem. And getting a casere solved via verdict, settlement, or dismissal, brings peace and certainty. Generally speaking—the sooner,the better.
In 2013 (the most recent year for which the statistics are available), of the 94,412 civil cases concluded in Virginia Circuit Courts, 72,103 of those cases had been filed within the previous 12 months. Only 2,800 of the concluded cases in that time frame were filed more than 60 months prior to conclusion.¹
The Virginia judicial system is efficient and run by talented and skilled judges, administrators, and attorneys. Delivering justice quickly is an important goal to all players in the system. Much is written about the general nationwide trend toward fewer civil jury trials.² The reasons cited often deal with expense and certainty along with the progression of alternative dispute resolution programs.
Unfortunately, as we look ahead to 2022 and beyond,civil litigants relying on multi-day jury trials should anticipate delays in having trials set due to several significant legislative changes coupled with the backlog and challenges imposed by the COVID-19 pandemic.
In addition to the existing trial backlog caused by the early COVID-19 judicial emergency orders, the end of jury sentencing in criminal trials coupled with the priority given to criminal trials by the Supreme Court of Virginia is likely to result in a short-term surge in criminal jury trials that may restrict or even bottleneck many courts’ dockets.
More broadly, the 2021 legislation expanding the Court of Appeals of Virginia and creating an appeal of right in all civil and criminal cases may incentivize more litigants (and liability insurance carriers) to seek trials rather than settlements of closely contested cases.³ A slower litigation process means that a defendant who might ultimately pay a settlement or judgment holds onto his or her money longer. And although the courts will eventually arrive at a functional equilibrium, in the short term, the increased demand for jury trials may result in delays in scheduling multi-day civil jury trials.
Judicial Emergency Orders and Jury Sentencing Legislation Create Trial Backlog
The Supreme Court’s early judicial emergency orderstolled the statutory speedy trial deadline for criminal defendants, allowing otherwise impermissible delays in criminal trials.4 This tolling created a backlog in criminal cases that jurisdictions across the Commonwealth are still processing.
Exacerbating this backlog is the notable legislation eliminating jury sentencing, creating a new incentive for criminal defendants to seek jury trials. In its summer 2020 special session, the General Assembly passed jury sentencing reform measures ending the long-standing practice of juries adjudicating both the guilt and sentencing phases of criminal trials.
Beginning July 1, 2021, all criminal defendants convicted by a jury will be sentenced by a judge unless the defendant elects to have jury sentencing.5 Criminal defendants may be more likely to take their chances with a jury trial when, upon conviction, sentences will be determined by an experienced judge and not subject to the unpredictability of a jury. Practically speaking, this change in criminal procedure is likely to impact civil cases by making trial reservations more difficult to obtain, given the scheduling preference given to criminal jury trials due to the statutory speedy trial right in Virginia.6
When juries sentenced a criminal defendant under the former system, they only knew the permissible statutory range of punishments. Judges, however, consider the sentencing guidelines when adjudicating punishment. The sentencing guidelines, implemented when Virginia ended parole in the 1990s, tend to recommend lower sentences than what the average jury might render,knowing only the statutory range.7
For example, a jury that returned a malicious wounding conviction would only know that the punishment range for that offense is 5 to 20 years. The guidelines, in contrast, would generally recommend a relatively tight sentencing range on the lower end of the broad statutory range. The guidelines in the aggregate have generated substantially lower punishment recommendations than sentences rendered by juries in Virginia.
Although the sentencing guidelines are discretionary,judges tend to follow them because they obligate judges to provide a reason for deviating from there commended range. More significantly, regular deviation from those guidelines has historically placed a judge’s prospects of reappointment by the General Assembly in jeopardy.
Further, trial judges—but not juries—have the authority to suspend incarceration time, allowing a convicted defendant to serve some or all of the sentence out of prison as long as the defendant complied with court-ordered conditions.8 In the malicious wounding example, a jury would routinely impose a 10+ year sentence when the guidelines recommended only 1-3 years of active incarceration. Needless to say, a jury trial has long been a risky proposition for Virginia criminal defendants.
Until now, criminal defendants have been incentivized to seek bench trials: they presumably have higher odds of conviction by a judge compared to a jury, but if convicted, the prevailing wisdom was that the judge’s sentence would likely be significantly lower. This paradigm, which has persisted since parole was abolished nearly 30 years ago, will likely change with the elimination of jury sentencing.
As of July 1, when judges will handle the sentencing of defendants convicted by a jury, a criminal defendant who opts for a jury trial may benefit from both the jury’s potentially lower likelihood of conviction and the trial judge’s theoretically less severe sentencing tendencies.
Appeals of Right and Pandemic Precautions Create Further Uncertainty
Another factor that may contribute to increased criminal jury trials and further delay multi-day civil jury trial scheduling is the expansion of the Court of Appeals of Virginia to include appeals of right in criminal and civil cases.
Under the current system, criminal defendants must petition the Court of Appeals to hear their appeals, and fewer than 10 percent of criminal appeals are granted—most end with a one-judge denial order.
Beginning on January 1, 2022, every criminal defendant will be entitled to an appeal of right with full briefing and oral argument before a three-judge panel of the Court of Appeals.9
Finally, the extensive pandemic precautions required for every courthouse with an approved plan to resume jury trials will likely continue for the foreseeable future.These precautions, including enhanced cleaning, fewer numbers of prospective jurors in a courtroom at a time,and intensive symptom screening, reduce the efficiency of jury trials.10 A COVID-era jury trial will take more time than one in ordinary times. This fact, too, will slow courts’ ability to clear their jury trial backlogs and schedule multi-day civil jury trials.
Conclusion
The combination of the end of jury sentencing, appeal of right to the Court of Appeals, and enhanced pandemic precautions will inhibit courts’ ability to clear their dockets and set major new trials. Civil litigators who require multi-day jury trials will feel the brunt of this stress.
Over time, the judicial system will adjust to the demands through greater experience and efficiency with pandemic-era juries, additional staffing, and perhaps more pretrial resolution and continued expansive use of alternative dispute resolution tools.
These adjustments will take time, and the demand for multi-day jury trials and court time will likely outpace supply for the foreseeable future.
Looking ahead, the strain on the limited resources of the Virginia trial court system could result in further delays that may continue the trend of fewer civil jury trials as expenses and delays become a heavier burden to carry. This environment presents a challenge to attorneys, litigants, and courts to use best efforts to facilitate timely administration of justice.
About the Authors:
Sean P. Byrne, Esq. is a medical malpractice and healthcare law defense trial attorney.
Graham K. Bryant, Esq. concentrates his practice on appellate advocacy along with complex health care litigation and regulatory matters.
Jeremy A. Theisen, Esq. concentrates his practice on medical malpractice defense, government investigations,and white-collar criminal defense.
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1 The Court statistics referenced can be found here (page 303)
2 See, e.g. Graham K. Bryant & Kristopher McClellan, The Disappearing Civil Trial: Implications for the Future of Law Practice, 30 Regent U. L. Rev. 287 (2018).
3 2021 Acts ch. 489 (Spec. Sess. I).
4 The Virginia Supreme Court issued an emergency order that tolled the speedy trial “clock” for criminal cases. The Court has repeatedly extended that emergency order through the present. The original declaration of the “Judicial Emergency” can be viewed here. The most recent extension (the 27th order) can be viewed here.
5 2020 Acts ch. 43 (Spec. Sess. I).
6 Virginia Code § 19.2-243. Limitation on prosecution of felony due to lapse of time after finding of probable cause.
7 The Virginia Criminal Sentencing Commission (VCSC) promulgates the sentencing guidelines. The guidelines consider the nature of the offense and the offender’s historyi n recommending a sentence range, assigning points to various factors of the offense and offender in a “worksheet” format, where each point correlates to one month of active incarceration. Those worksheets, as well as general information regarding the VCSC, can be accessed here.
8 Courts in Virginia have long had the authority to suspend a portion of a jury’s sentence, however, this rarely occurred.
9 See Va. Code § 17.1-406(A) (eff. 1/1/2022); Va. Code § 17.1-407(B) (eff. 1/1/2022).
10 The jury trial preparedness plan for each jurisdiction in Virginia, and the extent of the precautions therein, can be found here.
