In October 2015, a woman underwent a routine neurosurgical procedure. Following the surgery, she developed bleeding around her spine. The hospital did not remove the blood in time, and the bleeding permanently damaged her spinal cord, causing paraplegia. She and her husband, who had retired in Maine, were plunged into an unending nightmare.
The state’s backlog of criminal cases has been cited as a reason to keep putting off the resumption of civil jury trials here – although Article I, Section 20 of the Maine Constitution guarantees the right to a civil jury trial. Daniel Tadevosyan/Shutterstock.com
The couple came to see me about a potential malpractice case, which we filed in court. Unfortunately, the lawsuit was still unresolved more than two years later, when my client died of complications of her paralysis.
After the wife’s death, her husband continued with the case. He recently turned 80. He is in good health, but it is far from clear whether Maine’s civil justice system will enable him to have his case heard in his lifetime.
When the pandemic struck last spring, Maine courts abruptly stopped conducting jury trials. It was an understandable measure to protect judges, litigants and jurors. At that time, no one yet knew how to adapt to the pandemic.
Less understandably, more than a year later, our civil justice system remains shuttered.
Soon after COVID hit, our Legislature developed plans to reopen through a combination of social distancing and Zoom technology. The Legislature is up and running. Our municipal governments and public schools have adapted, as have those of us in the private sector. In other states, courts have been holding jury trials for months using enhanced safety protocols and Zoom.
By contrast, Maine’s judiciary has failed to come up with a solution to enable our court system to function. Not only has our judiciary failed to implement strategies to resume civil (and for the most part, criminal) jury trials, our Supreme Judicial Court issued an order prohibiting trial judges from using their own ingenuity to find a way to conduct civil jury trials.
Now, as our courts are finally attempting to reopen, they face a dizzying backlog of criminal cases, which, the judiciary says, prevents them from holding civil jury trials. One judge has told me that he does not expect Maine to conduct civil jury trials in 2021. If he’s correct, that means we will have gone more than two years without a civil jury trial.
Some argue that a criminal defendant’s constitutional speedy trial right means even the most mundane criminal case must be prioritized over the most significant civil case. But the right to a civil jury trial is guaranteed by the Maine Constitution. Pitting criminal against civil is a false choice. Both types of cases are important, and our citizens, who rely upon a functioning court system, have a right to expect that our judiciary will find a way to afford reasonable access to justice for both criminal and civil cases.
Recently, I sought permission to have the case of my paralyzed client tried using Zoom, as has been done in many other jurisdictions. The court rejected my request but offered no other alternative. It is like arriving at the courthouse to find a large “closed” sign with no indication as to when the doors will be reopened.
Earlier this year, the judiciary formed a working group to explore restarting civil jury trials. Although formed too late, the working group is a step in the right direction. Its members – including me – are working hard to find solutions that will enable the courts to begin holding civil jury trials again. However, the process remains plodding, and it is unclear whether the working group’s recommendations will ever be implemented.
Thirteen months into the pandemic, I remain concerned that there is little willingness to devote the time, energy and resources it will take to restore a functional judicial system. I worry that we will go another year without any more than a token number of civil jury trials, and that, if vaccinations are not the panacea we hope they will be, our courts will remain without any workable plan to meet their constitutional obligations. Mostly, I am concerned that we will come to accept the misguided notion that the right to a civil jury trial is a luxury rather than a basic right established by our constitution.
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