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April 01, 2021 Articles

What COVID-19-Era Litigation May Foretell for Remote Bench Trials

Virtual trial testimony in bench trials may well become more common in post-pandemic courtrooms.

By Jeffrey E. Gross
Once in-person trials resume in the coming months, questions about remote bench trials will remain relevant.

Once in-person trials resume in the coming months, questions about remote bench trials will remain relevant.

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Cautiously, many state and federal courts are preparing to resume in-person trials after many months of empty, or at least trial-free, courthouses. During the pandemic, many courts have presided over remote bench trials, usually when the parties have agreed to do so. Remote bench trials have been far more common than jury trials, which present different and difficult issues, such as the right to confrontation in criminal cases and the difficulty of remotely controlling jurors’ participation and deliberations in all cases.

When non-jury cases have become trial-ready in the past year, trial lawyers and courts have faced difficult decisions. Should the parties agree to a remote bench trial? What if one side prefers a remote trial (thereby enabling a speedier trial date) but the other side insists on waiting until the return of fully in-person trials? Can a court order a party to try a non-jury proceeding using remote technology? Even if a court can do so, should it?

Much can ride on the answers to these questions. For example, in December 2020, the parties in a $2 billion decade-old dispute over mortgage-backed securities could not agree whether to proceed with a virtual bench trial. The defendant wanted to proceed with a remote bench trial, but the plaintiff wanted the court to wait until it was safe to hold an in-person trial. Neither side in this case, which is pending in New York’s Commercial Division, found any controlling authority that enshrined a right to an in-person trial. See “Countrywide, Ambac Spar Over Right To In-Person NY Trial,” Law360, Dec. 18, 2020. The court ultimately held that it would not force the plaintiff to proceed with a virtual bench trial, because the plaintiff had persuaded the court that even virtual proceedings were unsafe. Even a remote trial of this particular case would entail having lawyers from multiple law firms travel to New York, stay in hotels, and work together in “war rooms” for weeks on end. The court postponed the trial, but it noted that it had the power, under the state’s judicial statutes, to devise the form of proceedings. Ambac Assurance Corp. v. Countrywide Home Loans, Inc., No. 651612/2010, 2020 WL 7657983, at *1 (N.Y. Sup. Ct. Dec. 24, 2020). A few months later, the New York State court system issued procedures for virtual bench trials, which noted that it was a “best practice”—not a requirement, though—to require the parties to stipulate before conducting a virtual bench trial.

Parties in federal courts have litigated similar disputes over remote proceedings, often grounded in the scope and application of Rule 43(a) of the Federal Rules of Civil Procedure. That rule allows a court to permit contemporaneous testimony in court from a different location “[f]or good cause in compelling circumstances and with appropriate safeguards.” Fed. R. Civ. P. 43(a). Whether that rule permits a court to compel a litigant to conduct an entire trial remotely, particularly a long one, is unsettled.

Some federal courts have compelled remote bench trials over the objections of one or more parties. Gould Elecs. Inc. v. Livingston Cty. Rd. Comm’n, No. 17-11130, 2020 WL 3717792, at *1 (E.D. Mich. June 30, 2020) (scheduling bench trial over both parties’ objections); Food & Water Watch, Inc. v. EPA, No. 17-02162 (N.D. Cal. 2020) (conducting an eight-day bench trial by Zoom in complex case about the risk of fluoridation chemicals in drinking water). But other federal courts have been reluctant to require an unwilling party to proceed remotely. For example, in a bellwether bench trial against opioid manufacturers pending in federal court in West Virginia, the court postponed the trial; the plaintiff was prepared to go forward with some witnesses appearing remotely, if necessary, but the defendants objected and sought a continuance. City of Huntington v. AmerisourceBergen Drug Corp., No. CV 3:17-01362, 2021 WL 99715, at *1 (S.D. W. Va. Jan. 12, 2021).

Once in-person trials resume in the coming months, questions about remote bench trials will remain relevant. For post-pandemic trials, lawyers may have to consider at least partially remote proceedings and calculate how courts, lawyers, and clients perceive the advantages and disadvantages of remote trials. For example, what if a party’s witness has a reasonable basis to claim that appearing in-person would impose a hardship but the other side insists on an in-person cross-examination? It is possible that judges will be more open to remote witness testimony at bench trials than they were pre-pandemic. Indeed, judges have likely presided over remote witness testimony on contested matters during the pandemic and, presumably, have become more comfortable assessing credibility through remote proceedings. And there is a reasonable argument that permitting live remote testimony would be better for fact-finding and justice than traditional ways of accepting testimony, such as reading a transcript or playing the video of a trial deposition. Remote trial testimony in bench trials may well become more common in post-pandemic courtrooms.

Jeffrey E. Gross is a partner with Reid Collins & Tsai LLP in New York City, New York.

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