Trial in the Age of Zoom, Part 1: Initial Observations
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Trial in the Age of Zoom, Part 1: Initial Observations

| Mar 29, 2021 | Firm News

Written by William A. Earnhart

For myself and my team, the first two weeks of January 2021 were consumed with what may have been the first full civil trial in Alaska conducted exclusively online, remotely, via Zoom. For background, this was a bench trial; each party had reasons for not demanding a jury. It was a personal injury action arising out of a 2017 auto accident involving a large commercial vehicle and liability was admitted. Plaintiff claimed ongoing injuries; a life care plan of 1.5 million dollars; and $15,000,0000 in lost earning capacity. There were ten experts for the Plaintiff and we called four experts for the Defense.  Each party called several fact witnesses live or by deposition. Plaintiff also testified via Zoom.

This case was complicated by the fact that Plaintiff was represented by one local attorney and two out of state attorneys specializing in traumatic brain Injury. There was, much to my embarrassment, and the chagrin of the judge, an almost complete failure of the attorneys to agree on almost anything, including exhibit admissibility.

We had fought hard to have trial live, or at least have the Plaintiff live in the courtroom to no avail. This raises the question: can a judge, in a state where so many communities are truly “remote,” require live attendance? I would hope, as explained below, that live attendance be required when practical.

There are a number of practical issues with using Zoom or any other on-line meeting platform. The Judge to her credit appeared to be earnestly following the proceedings, however as with any large online gathering there was at times a lack of engagement by the parties. Zoom allows an observer to be “present,” perhaps anonymously, without actually being engaged in the proceedings. At trial, the evidence played out essentially as expected and my client and the numerous interested parties listening did not ever question our strategy. In a live trial, there are always points where the client gets nervous hearing the opposing argument live for the first time.  Plaintiff admitted on the stand that she had not even been listening in. It was clear that neither party took anytime to reassess their case, and no settlement discussions were requested or occurred.

Another problem, graphically shown in numerous incidents regarding depositions, is there is very little security that only the witness is in the room and more importantly, nothing but the exhibit is on their screen. Each witness can be asked, and in several occasions were asked if there were any other communications or materials available before them, however if the honor system worked, many trial attorneys would be out of work. In trial expert witnesses repeatedly referred to additional materials before them that were not available, shown or discussed with the opposing party. There was often the suspicion that each witness was receiving messages on the bottom of their screen.

Another aspect was the “open” court room. On Zoom, some observers are identified by name or company, and others by phone number; however it was not always clear who was watching or listening in. Our trial had witness exclusion, but there is no guarantee that it actually occurred. Also, although the court was clear, the proceedings were to be taped by no one other than the court clerk, there is no way to determine if that directive was actually followed.

Continued with Trial in the Age of Zoom, Part 2: Practical Advice

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