The Justice System is Struggling to Adapt to the COVID – 19 Pandemic

Here we sit in the seventh month of the COVID–19 pandemic. When will it end? No one knows. Optimists thought that it would end with warm weather. They were wrong. Now they think a vaccine is on the horizon. Maybe. More realistic observers suggest a successful vaccine won’t be administered broadly enough to bring the pandemic under control until late 2021. And we don’t actually know that any vaccine under development will prove safe and effective.


We hope so, but hope is not a plan.

On Friday, September 26, Johns Hopkins University confirmed 55,054 new cases, the highest single day total since August 14.

Meanwhile, the justice system is only beginning to adapt to the current circumstances. Across the country, courts are reopening in fits and starts. A few handfuls of jury trials have been conducted. Here in Vermont, the courts are searching to regain their footing after closing to all but emergencies.

The First Vermont Jury Trial Since March Took Place Last Week

Last week a federal criminal jury trial was conducted in U.S. District Court in Rutland. It’s the first jury trial in Vermont since March. Jury selection is U.S. v. S. C. began last Monday. One hundred and fifty potential jurors were summoned. Those claiming co-morbidities likely to heighten the risks of COVID 19 were excused. Fifty jurors appeared in 3 separate waves over the day. Jury selection proceeded in the 8,000 square foot former post office space on the first floor of the courthouse. A jury of 12 was selected and trial proceeded. Counsel were masked at all times. Witnesses sat in a plexiglass enclosed witness box and cleaned up for themselves after their testimony. By stipulation, out-of-state witnesses testified by telephone. By mid-afternoon Wednesday, testimony was complete, and deliberations began. A guilty verdict was returned Thursday morning.

Although bumps may yet appear, it looks like our federal courts are back in business, albeit in a slower and more cumbersome way. But the federal courts handle only a small fraction of state cases, and they are far better resourced than our courts.

There is no Near-Term Prospect for State Civil Jury Trials

No jury trial has yet begun in state court. Civil jury trials are suspended until January, and there’s reason to doubt that they will begin even then.

Particularly in criminal matters, the courts are under considerable pressure to resume jury trials. The Supreme Court Jury Restart Committee: Report on Resumption of Criminal Jury Trials (July 20, 2020), suggests that as many as 10 of our fourteen counties have at least one courthouse that is large enough to accommodate 12- person juries. But various other problems besides overall size, as small jury rooms, and HVAC issues, are problematic.

Even if 12-person jury cases can be managed for criminal cases it’s hard to imagine that our state courts can muster the resources for civil juries of 12 until the pandemic is over. The courthouses we have that can manage 12-person juries will largely be absorbed in handling the backlog of criminal cases. Perhaps other buildings, like gymnasiums or hotel conference facilities, can be used temporarily. Even then, significant fit-up would be required. And only a few Vermont communities have such resources.

Alternative Dispute Resolution has Adapted

Meanwhile, alternative dispute resolution providers adapted quickly to the new conditions. Mediations and arbitrations have continued by videoconference with barely a stumble. These proceedings help to keep some pressure off the courts, but they rest on voluntary participation. While cases continue to settle in mediation and a few cases are being arbitrated, these processes are, by definition, alternatives to — not substitutes for — trial by jury.

Jury Trials Drive the Civil Docket

Unless steps are taken soon, we may face years without civil jury trials. Even in normal times relatively few civil trials are conducted, but the prospect of trial drives the entire civil docket. Without the realistic expectation of a jury trial, the civil docket will quickly develop a huge backlog. In almost every case, one party will be significantly advantaged by delay. Absent the risk of a worst-case result before a jury, there is not much incentive for defendants to settle, except for a song.

Can we Move to 6-Person Civil Juries?

If we could conduct civil jury trials with 6 jurors instead of 12, the hurdles to resuming jury trials would be far lower. Unfortunately, dicta from an old Vermont Supreme Court case states that a 12- person jury is a constitutionally required:

We have no doubt, the ‘right of trial by jury’ spoken of in the constitution, and which it is said “ought to be held sacred,” means a jury as at common law, which consists of twelve men, and that wherever a constitution guaranties ‘the right of trial by jury,’ it is not competent for a legislature to reduce that number to six, or any less number than twelve; for the very theory of a trial by jury requires the unanimous consent of twelve men to the verdict.

Lincoln v. Smith, 27 Vt. 328, 358-9 (1855) (emphasis added). See also, State v. Machia, 155 Vt. 182, 194 (1990) (criminal cases).

Some Vermont lawyers are suggesting that the Vermont Supreme Court adopt an administrative rule limiting jury size to 6 persons. Will the Court exercise its administrative authority in that way in the face of the language of Lincoln? Any such rule would almost certainly face a constitutional challenge. That would leave the Court in the uncomfortable posture of determining the constitutionality of its own rule.

There’s another approach to advancing 6-person juries. Some brave lawyers must persuade Superior Court judges to order a 6-person jury trials.

No doubt any significant verdict would be appealed. Given the age of the decision in Lincoln, the outmoded thinking its language reflects, and the exigent need to get jury trials back on track, the prospects for success on appeal seem realistic.

Who is willing to give it a try?


Photo of Rich Cassidy Rich Cassidy

Rich Cassidy is a Vermont personal injury and employment lawyer. He also works regularly as a mediator and arbitrator.

A founder of Rich Cassidy Law, he has more than 40 years of experience with the practice of law in Vermont. Over the years…

Rich Cassidy is a Vermont personal injury and employment lawyer. He also works regularly as a mediator and arbitrator.

A founder of Rich Cassidy Law, he has more than 40 years of experience with the practice of law in Vermont. Over the years, his practice has changed substantially. As a result, Rich has represented all sides in many kinds of disputes: plaintiffs and defendants, employers and employees, injured parties and insurance companies. He believes that the breadth of his experience benefits all of his clients.

He is proud to represent the Burlington Police Officers Association and United Nurses & Allied Professionals.

For many years, Rich’s personal injury practice has been limited to representing injured persons and his labor and employment practice has been focused on representing employees. He enjoys the challenge of representing individuals in a world that seems increasingly dominated by large corporations and powerful institutions.

He has significant experience with litigation and alternative dispute resolution involving higher education, public education, public safety, health care, municipalities and manufacturing. His clients have included college students, faculty, and administrators as well as individuals, businesses, governmental agencies, and not-for-profit entities. He represents both labor unions and individuals in collective bargaining relationships. Many of his individual clients in employment law cases begin work with him under Limited Scope Representation Agreements.

He has also advocated for individuals, businesses and governments in a broad range of civil litigation, including in construction cases, cases under the Uniform Commercial Code, and contract and business tort claims.

In addition to his work as a litigator and counselor, he has served as a mediator and arbitrator and is a member of the Panel of Early Neutral Evaluators for the United States District Court for the District of Vermont and the early neutral evaluation panels for the Vermont Environmental Court and Vermont Superior Courts.

Rich believes that legal process can serve the ends of justice and has been active in work to improve the law throughout his career. For details see our public service page.

When he’s not practicing law or in a committee meeting, Rich enjoys reading, walking his dog, Sophie, skiing, swimming, and rowing his Adirondack Guide Boat on Lake Champlain.



·         Albany Law School Union University, Albany, New York

    • J.D. – 1978

·         University of Vermont, Burlington, Vermont

    • B.A. – 1975

·         Mount Saint Joseph Academy, Rutland, Vermont

    • College Preparatory Diploma – 1967 -1971

Bar Admissions:

·         Vermont, 1979

·         New York, 1979

·         U.S. District Court District of Vermont, 1979

·         U.S. District Court Northern District of New York

·         U.S. Court of Appeals 2nd Circuit, 1986

·         U.S. Supreme Court, 1990

Honors and Awards:

·         Jonathon B. Chase Award, ACLU of Vermont, Inc., 1990

·         Grassroots Award, American Bar Association, 2009

·         Equal Justice for All Award, American Bar Association, 2008

·         President’s Award, Vermont Bar Association, 2015

Professional Associations and Memberships:

·         Uniform Law Commission

    • President, 2015 – 2017
    • Executive Committee, Member
    • Scope & Program Committee, Chair, Member
    • Secretary
    • Uniform Collateral Consequences of Conviction Act, Drafting Committee Chair
    • Apportionment of Tort Responsibility Act, Member, Drafting Committee
    • Revised Uniform Arbitration Act, Member, Drafting Committee
    • The Model Punitive Damages Act, Member, Drafting Committee
    • Covenants Not to Compete Drafting Committee, Chair, 2020 to present
    • Developments in Privacy Law Committee, 2020 to present
    • Vermont Member, 1994 – Present

·         American Bar Association, 1978 – Present

    • Board of Governors, 2005 – 2008
    • American Bar Association, House of Delegates, 1999 – 2015

·         American Counsel Association, President, 2009 – 2010

    • Director

·         American Law Institute, Elected Member, 2015 – Present

·         Vermont Association for Justice, Member

·         Vermont Trial Lawyers Association, Member

·         Vermont Employment Lawyers Association, Founding Member, Past President, Treasurer

·         Vermont Bar Association, Member, 1978- Present


Past Employment:

·         Hon. Robert W. Larrow of the Vermont Supreme Court, Law Clerk, 1978 – 1979

·         Chief Justice Albert W. Barney, Jr., Vermont Supreme Court, Chief Law Clerk, 1979 – 1980

·         Law Office of David C. Drew, Associate Attorney, 1980 – 1982

·         Hoff, Wilson, Powell and Lang, P.C., 1982 – 1986

·         Hoff, Wilson, Powell and Lang, P.C., Shareholder, 1986 – 1989

·         Hoff Curtis, President and Shareholder, 1989 – 2016


Rich is a frequent writer and speaker on legal topics. He has lectured on trial practice, employment, arbitration, mediation, and construction law subjects before the American Bar Association, the National Employment Lawyers’ Association, the Vermont Bar Association, the Vermont Trial Lawyers Association, and the Vermont Employment Lawyers’ Association.

He has been selected for inclusion in Best Lawyers® and New England Super Lawyers® by his peers. (Listing in The Best Lawyers in America® or Super Lawyers® does not guarantee a desired result in a legal case or that listed lawyers are necessarily more skilled than lawyers who are not listed in such publications.) He was the 2013 “Best Lawyer of the Year” for Employment Law – Individuals and the 2015 “Best Mediator of the Year.”

His blog, On is widely read by legal professionals and is syndicated on Lex Blog.