By Byeongsook Seo
SNELL & WILMER
As we enter the summer of 2020, most states have loosened or eliminated their shelter-in-place orders, which caused many trial attorneys, like me, to conduct bench trials through video conferencing applications that allow for multi-video streaming while also presenting visual images of exhibits and presentations. As interesting of an experience remote bench trials may be, let us hope that we will soon move past these “unprecedented times” and return to the courts for in-person trials. But if the COVID-19 pandemic mirrors the 1918 influenza pandemic, additional waves of COVID-19 infections are possible. These additional waves could trigger further SIP orders. In turn, remote bench trial presentations may continue to be the norm. So, remembering the lessons we learned during those trials may prove helpful. These remote trials may be the “precedent” for conducting trials in future “unprecedented times.” Here are a few lessons I learned that may help during the next wave of remote bench trials.
Play well with others. As with any trial, all parties will have the opportunity to present their cases-in-chief. Any video conference application must be capable of transitioning the control of presentation to a party as is appropriate. Unless the court is equipped to operate two different video conferencing applications simultaneously, all parties and the court should have access to use a single video conferencing application during trial. Not all counsel will be familiar with all video conferencing applications. Consider rehearsing the transitioning control of the application with opposing counsel. This can permit everyone to feel comfortable that the video conferencing platform will work for all parties.
The court need not participate, but court staff should be invited. Like attorneys, not all courts are familiar with all video conferencing applications. By inviting the court to participate in a test run of the conferencing application, you may help ensure that the court feels comfortable that it can create an appropriate record of the trial proceedings.
And if your court does not have standing orders to address remote trial presentations, these rehearsals may help establish presentation protocol to manage exhibits and deposition transcripts among the parties and the court. For example, consider working with opposing counsel to address how to pass witnesses in advance of trial. In one of my cases, we reached an agreement with opposing counsel that before an examining attorney would pass a witness to the opposing party, the examining attorney would be permitted to ask for a pause of a few minutes to confer with the attorney’s respective team to determine if further examination was needed before passing the witnesses. During such pauses, the examining attorney would mute the attorney’s microphone so that the attorney could confer with their team on a separate telephone line and not risk disclosing privileged communications.
Practice makes perfect. While it is important to work with opposing counsel to help ensure a smooth trial presentation, it’s even more important to work with your witnesses before trial to help ensure their video testimony will be presented in the best light. Consider rehearsing your witness examination with your witness at the location where the witness intends to broadcast from during trial. During witness rehearsals, observe the witness’ surroundings. You may want to consider removing all distracting or inappropriate decorations, furniture or fixtures from the field of view of the witness’ camera. The rehearsals may also allow you to ensure there is appropriate lighting to broadcast your witness’ image.
Rehearsals serve as an opportunity to ensure that your witnesses have proper equipment. If witnesses do not have a webcam or at least a 13-inch monitor to view images presented from your computer (such as exhibits), you may want to allow enough time to deliver any necessary equipment to your witnesses to ensure the witness can fully participate. With enough lead time before trial, you can safely deliver equipment and conduct another rehearsal to help ensure the delivered equipment works properly.
You may also want to consider using witness rehearsals to remind witnesses of any unique protocols. If there is a sequestration order, you can let the witnesses know that they should not login to the video conference before being asked to do so.
Be mindful of controlling your broadcast. No, I’m not just referring to infamous videos you may have seen where a presenter isn’t aware that another person is within the presenter’s background and doing something distracting. I am also referring to trial decorum and protocol. Most conferencing applications video stream all attendees. At the start of trial or after returning from a break, viewing all attendees may make sense to show the court that all the participants have returned to the virtual courtroom. During examinations, however, attorneys who are not conducting the examinations may want to turn off their video streams. Otherwise, reactions by non-examining attorneys to any presentation or examination will be visible to all conference attendees. Not only could a participant’s visual cues be distracting, a witness may spot the visual cue and adjust the testimony to address the perceived reaction. Worse, the court may deem the broadcast reactions to be inappropriate non-verbal communications with a witness.
Observe the attendee list. Most applications allow you to know who has logged in to participate in the conference even though that person’s video feed is not activated. Clients who are not on the virtual witness stand may take advantage of this feature, so they can observe the trial without distracting any examining attorney or testifying witness. By monitoring the attendee list, you will know when your client is “attending,” in case you want to delay the start of trial proceedings to ensure your client can observe all aspects of the proceedings.
If witnesses are sequestered, monitoring the attendee list can help manage when a witness enters the virtual courtroom. Remember, all witnesses need to do is login to your video conference and they will be able to watch and hear all proceedings. If the anticipated witness logs in before s/he should, you will see a new name or telephone number appear on the attendee list. Once you see a new name or number, you should consider quickly and courteously interrupting the proceedings and informing the court to help ensure sequestration orders are not violated.
For some attorneys, these suggestions may seem foreign. For such attorneys, know this, there are plenty of attorneys who have been through this experience. Our profession may not have faced these situations before, but now that some of us have, consider taking advantage of us and reaching out for tips. One of the reassuring aspects of this pandemic may be knowing that most people want to help. And that may hold true for attorneys helping other attorneys. Let us all assist each other in helping the wheels of justice turn as smoothly as possible. Good luck, stay healthy, and may we soon return to the “good old days” of in-person trials.
— Byeongsook Seo is counsel at Snell & Wilmer in Denver.