Written by William A. Earnhart
Continued from Trial in the Age of Zoom, Part 2: Practical Advice
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.
As a practical matter, for handling one-page exhibits or directing a witness to specific passages in multi-page exhibits, Zoom is fabulous and less clunky than the old ELMO machine. There are tools on zoom in or out portions of documents or enlarge pictures, and arrows and highlights that can be used effectively.
Where Zoom is less efficient is in any time that the witness may want or need to review the entire exhibit, or search for a particular provision. These concerns can of course be eliminated by providing the exhibits to the witness in advance. The problem however, is it is impractical to send each witness a full set of exhibits. Sending limited exhibits in advance can be accomplished, and in fact I have seen it work in depositions with some luck and assistance form FedEx. It works great for the party presenting the witness.
Civil discovery allows for cross examination to be largely outlined in advance. However, any truly effective cross does have impromptu aspects. An effective examiner has listened carefully to the direct testimony and will adjust accordingly. Those adjustments may be unplanned and should not be unnecessarily limited to only pre-planned exhibits. Nor should a cross examiner be required to provide advance notice of what specific exhibits might be of interest or issue. As the cross-examining attorney, you should not have to “show your hand” as to what materials you may use for impeachment in advance and need the flexibility to respond to unanticipated witness misstatements. Very rarely has an answer become more truthful or probative after a witness has conferred with counsel.
One solution is to require each witness to have a full set of exhibits available. However, as we can imagine, sending multiple large binders to every witness is impractical in a large trial, even if we are somewhat selective. We all know from deposition preparation, many pre-marked exhibits are never used as points conceded by the witness, or become irrelevant. The problem can be confounded by intransigent counsel. In this Zoom trial the parties agreed to the admissibility of less than 50% of the pre-marked exhibits. (As noted in part one this case suffered from an extreme case of a lack of congeniality between attorneys.)
In any trial, the Court needs to exercise tight control over what might be shown to the jury. This problem is compounded when using Zoom, in that any time the share screen is open, publication may be instantaneous. There is no delay while counsel approaches the witness and has the witness review the document, and it is too easy to share the exhibit with counsel and the judge for the purpose of arguing admissibility while forgetting the share screen is available to the jury. Zoom jury trials will require both the court and counsel carefully follow protocol and be extremely attentive as to who is accessing which screen.
While there are a number of advantages to using Zoom, some disadvantages to remote trials will never be fully resolved. Most issues regarding the handling of exhibits and impeachment will resolve with practice, and likely new processes and programming.