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

by | Mar 29, 2021 | Firm News

Written by William A. Earnhart
Continued from Trial in the Age of Zoom, Part 1: Initial Observations

The first two weeks of January 2021, my team and I were consumed with a trial that was conducted exclusively remote, via Zoom. Being as it was the first full civil trial in Alaska via Zoom, the learning curve was fast and the observations and advice came throughout trial.

First, before trial be sure to test out your system while on Zoom with the court.  Zoom is essential a platform to broadcast from your computer and adds an extra layer of transmission. This means your transmission is not only controlled by bandwidth, but also by the amount of data being sent by your computer into Zoom.

We found that to run video deposition clips we needed to have a computer dedicated solely to share screen.  To run Trial Director from the same computer as you are using for participation slowed the presentation to the point that the video chunked and the audio was undecipherable. As noted above, we fought hard top have Plaintiff to appear live in the courtroom.  We felt that Plaintiff’s credibility was a key aspect of our defense case.  Being able to use deposition clips effectively was absolutely essential to our defense, and was arguably the most effective tool we used.

Although a number of venues are requiring all exhibits be forwarded to witnesses in advance, our court allowed the parties to handle exhibits exclusively by Sharesceen. Although a party can easily recognize a signature or a short document online, this only worked for multi-page exhibits because authenticity had been stipulated. On the other hand, there was no disputing the court, the witness, and all parties were looking at the same image.

Second, practice “share screen” and preferably have an assistant solely dedicated to exhibit presentation planning ahead. The problem with share screen is in the heat of trial you need to ensure you are showcasing the correct item from the correct screen (and not something unintended.) Opposing counsel mostly handled each exhibit themselves as the questioning attorney.  Sometimes this was effective, but more often than not it was a tediously slow process, and on a number of occasions led to the wrong item on the screen. In one case, an exhibit was removed and an online chat with an expert was left for all to see for about 30 seconds before the problem was noted and pointed out.

Keep in mind share screen takes seconds to load and can be even slower with large files such as multi page exhibits or imaging. Having the exhibit uploaded can help keep the trial moving, and more importantly help you keep in rhythm. With Zoom there no need to “approach” the witness. This can make the time used to upload exhibits appear as an extended delay, so the faster you can get an exhibit accurately on the screen is to your benefit.

One of the advantages to having sharescreen capabilities and internet access was the ability to pull up live websites on the fly and share content with all participants simultaneously. This was useful in our situation, as the live pull-up largely circumvented the need for authentication.

As a bench trial, no side bars were required and exhibits that had not been admitted were freely displayed prior to objections. There are controls on Zoom that allow the judge to control the share screen and to have side bars, however these require the judge to be agile in managing the features while thoughtfully controlling and monitoring the trial. We also learned that hitting mute after the gavel is not always effective for either attorneys, and to at least one witness. Trial was also delayed on several instances when opposing counsel left two microphones open in one room. There is no way to immediately identify which participant is the cause of the feedback.

Continued with Trial in the Age of Zoom, Part 3: Using Exhibits with Zoom