February 28, 2021

Volume XI, Number 59

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February 26, 2021

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Looks Like We Made It

The Trump administration departs. The Biden administration arrives. But for the courts, the inauguration is no magic shot in the arm (as they say).

Appeals courts have been reluctant to second-guess trial courts’ approaches to COVID-19, at least explicitly. But the Texas Supreme Court has taken a different approach this week. According to Texas Lawyer:

[The Texas Supreme Court] has hit the brakes on an in-person jury trial in Houston this week, even though justices last year denied similar requests to continue trials as COVID-19 spread across the Lone Star State. Yet this time, as infection rates—reaching their highest point ever—have begun overrunning intensive care units in some Texas cities, the justices have issued an about-face by granting an emergency motion to stay.

New York litigators from Davis Polk & Wardell first asked for a trial continuance that was denied by Judge Mike Englehart. Next, they lost a bid from Houston’s 14th Court of Appeals to stop the two-week trial that was supposed to begin Monday.

Before the Texas Supreme Court, they argued that their lead trial counsel recently lost his father-in-law to COVID-19. The death “makes the risks associated with this trial much more onerous for counsel and his family.” The trial team members’ families include an elderly cancer survivor and immunocompromised relatives who might be exposed when the lawyers return from Houston. Also, a “key witness” currently “has the coronavirus and can’t testify.” Persistence paid.

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© 2020 McDermott Will & EmeryNational Law Review, Volume XI, Number 20
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