Trial in the Time of Covid

by | Oct 21, 2020

Fresh off a four-week bench trial with my partner, Norm Finkel – conducted entirely on Zoom – I want to share some of my impressions that will hopefully help inform clients’ decisions as we navigate our way through this new COVID-era legal environment.

As most clients know, even though live court appearances are largely on hold, courts are still functioning, and cases are still proceeding. We are filing new lawsuits weekly, conducting discovery, taking depositions, filing motions, and participating in hearings, arbitrations and, yes, trials.

Most clients have become comfortable with depositions and motion hearings conducted by Zoom. But the question of going to trial and presenting live testimony and documentary evidence by video still leaves a certain understandable uneasiness for many clients. After all, litigation is both a time consuming and expensive investment, and the idea that your case and your investment will be decided by video can create considerable pause.

So here were a few of my concerns heading into trial on a very complex commercial matter that had been pending since 2015 and involved two-trips to the appellate court.

Reading the Judge

The biggest concern for me as a courtroom attorney heading into a Zoom trial was my ability to read the judge who, because this was a bench trial, would decide both the law and the facts. As an advocate, I need to get a feel for my audience. When questioning a witness, understanding whether the judge is grasping the testimony and the narrative I am trying to tell and whether it’s being received positively or negatively is crucial. Litigators need to make adjustments on the run, no matter how well they’ve planned their examination. So the judge’s body language, head nods, blank stares, and all manners of facial expressions provide important sign posts. Would my ability to read the judge be lost in video transmission?

Though nothing substitutes for in-person interaction, a Zoom trial provides a few advantages. To understand how, it’s important to get a sense of what our Zoom courtroom looked like.

The judge appeared in her courtroom on the bench. My clients and co-counsel set up a conference room twenty miles from the courthouse with a counsel’s table, a witness stand, and a lectern like you see in a real courtroom. Our opponents convened in a conference room of their own with a similar arrangement.

In front of us, we placed a 60” monitor, and we had four different cameras in our room. One showed a close-up of the witnesses as they testified from our location, one showed counsel’s table, one was trained on the lectern behind which we stood as we questioned witnesses, and one showed the entire room, as was required, to ensure that no one in the room could be signaling witnesses. Again, opposing counsel had a similar setup. As a result,  we could see around ten views simultaneously on a 60” monitor, including closeups of each witness, the attorneys examining the witness, and of course, the judge. And like a live trial, a court reporter was present, albeit on screen in her office.

The closeup of the judge, from her torso up, was the same angle you get in court, but the closeup actually made reading her body language easier. In fact, the set-up had one distinct advantage over a live trial. In a courtroom, it is nearly impossible to question a witness and read the judge at the same time for the very simple reason that you can look only in one direction at a time, either at the witness or the judge. But with a video trial, the judge and the witness appear on the same screen, and you can see both as you conduct your examination.

Conducting Examinations

The second concern I had was my ability to effectively cross-examine adverse witnesses who would be testifying by video in our opponent’s conference room. When examining a hostile witness, a certain physicality comes into play. An effective cross-examiner will control the pace of the questions and answers. Because witnesses generally have less experience in this battle, they are usually somewhat nervous. My concern was that not being face-to-face, I’d lose the intimidation factor. As it turned out, the adverse witnesses seemed just as nervous as in person. In fact, my co-counsel’s cross-examinations of our opponents’ expert witnesses were some of the best I’ve seen. The Zoom trial also allowed us to take live video-testimony from two witnesses in Europe.

Introducing Documentary Evidence

The third concern I had was how would we handle the documentary evidence in a case involving over 600 exhibits, many of them hundreds of pages long. Surprisingly, presenting documentary evidence at the trial was quite easy.

Each side had prepared, exchanged, and delivered to the court exhibit binders well ahead of trial. When it came time to introduce an exhibit during an examination, all parties, witnesses, and the court not only had physical copies of the documents, but they were shared on the video as well. In this regard, nothing at all was lost from an in-person trial.

After four weeks, I came away certain that Zoom trials can be very effective – not just trial-like, but a trial in every sense of the word. And like many bench trials, it ended without a decision at the close of the trial. Instead, the judge asked the parties to present proposed findings of fact and conclusions of law. A ruling is not expected until the end of October. The more things change, the more they stay the same.

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