We are monitoring the coronavirus (COVID-19) situation as it relates to law and litigation. Find more resources and articles on our COVID-19 portal. For the duration of the crisis, all coronavirus-related articles are outside our paywall and available to all readers.
Your client does not want to wait for things to get back to normal to resolve issues in his case. Or the judge wants to cut down on the pending matters on the docket. Either way, you are going to have a remote trial—but you have not even taken a remote deposition before. I was recently in your position, and here are some tips that helped me have a (mostly) successful bench trial.
First, check if the court has any guidance on how it wants the hearing to go.
Our district court judge met with counsel by telephone the week before our trial. During the conference, the judge inquired as to how many witnesses and exhibits each side actually intended to call and provided ground rules for how the court expected the trial to go. If you are having a nonfinal evidentiary hearing, you should address whether and to what extent the court will permit the introduction of hearsay, which can reduce the number of witnesses and the time to complete the hearing. One item that we did not discuss, however, was how our witnesses would attend the Zoom trial. So, following the conference, we had to call the judge’s chambers to ensure that we had the proper links and passwords for our witnesses to attend.
One of our judge’s requirements, and one that proved instrumental in ensuring a smooth trial, was for us to submit a joint exhibit list, indicating any objections to the introduction of each exhibit. This allowed our judge to admit all but two exhibits into evidence without the need for calling witnesses to establish the predicates for introducing those exhibits. For the two remaining exhibits, we had already framed the issues for the court to hold a quick hearing on their admissibility. We also decided during our conference that we would not exclude (from attending the trial) witnesses who had not yet testified. This kept things moving, and we were actually able to excuse a witness before testifying because we were able to determine that she had nothing to add to what had already been elicited.
Prepare Clients and Witnesses
Next, you will want to make sure that your client and witnesses are prepared for testifying by remote means.
In preparing to defend a deposition over Zoom, I learned that my client’s computer did not have a camera. We still had a week before the deposition and were able to get him a camera. You will want to make sure that you check in early to ensure that anyone you intend to call to testify has a webcam. You will not want someone testifying from a mobile phone or tablet, where the ability to examine exhibits can be compromised due to size and layout limitations.
In addition to the hardware checks and your normal witness prep, you will need to make sure that your witnesses understand that while they will not be physically present in the courthouse, they should still give the proper respect to the experience. One of the witnesses for the other side, a college sophomore, appeared from her bed with a blanket pulled up to her neck. When the blanket came down for a bit, it revealed that she was wearing a T-shirt. This attire looked very out of place as everyone else on the Zoom screen was wearing a suit.
Similarly, you should make sure that you and anyone else on your team are properly dressed. You might think that your lower half is not going to show up in the field of your camera, but can you be absolutely sure? If you drop your pen, you might just flash your pajama pants as you bend over to pick it up.
While your witnesses may be testifying from their home or office and will likely be looking at their computer while testifying, you should be sure that they are not planning during their testimony to refer to items that are not exhibits. After a witness was asked if she remembered seeing a particular email, it became clear that what at first looked like the witness being lost in thought was actually her looking at her email in-box for the email. You should forewarn your client and witnesses that they will need to be prepared to testify from memory and should not review anything during their testimony that is not presented to them as an exhibit. Likewise, they should exclude everyone else from being in the room with them. Unlike in a courtroom, a spectator who is only six feet away may feel compelled to try to help a witness remember something.
As with anything else in the legal field, it will benefit you to practice.
Make sure that you and your witnesses are comfortable with the platform that you will be using for the remote trial. It helps to have at least one session with each witness, wherein you should practice sharing your screen to show exhibits to the witness. You should also practice using your document viewer, or trial presentation software, to highlight and draw attention to specific passages in the documents. Not only will this help get your witness acquainted with using the technology, but it gives you a chance to practice as well.
Keep in mind that platforms like Zoom give you multiple options for sharing all or part of your screen. You should get comfortable with these options so that you are not fumbling through them, or inadvertently sharing something privileged, during your trial. To this end, it helped me to have a dual-screen setup and designate one for exhibits only. This kept me from inadvertently putting private information on the screen that I would be sharing throughout the trial. In addition to this, I kept my marked-up copies of exhibits and witness outlines off of my computer screen altogether and opted to keep them on an iPad, though having them printed accomplishes the same safeguards.
You might decide during your practice session that you would prefer someone else from your team to handle the exhibits and presenting them to the witnesses. Check with the court to make sure that there are no technical limitations on the number of users that can participate at one time or other reasons why you cannot do this. If you are not comfortable with the technical aspects, having another team member handle the exhibits can free you up to focus on the witness and eliciting the testimony that you need.
Finally, remember that although you are working in a different venue than normal, you are still doing the job for which you studied and trained. Once you get past the novelty of practicing over the internet, you should find that you will get comfortable in the experience. Also, we are all adjusting to the new normal together, so even if it takes you a little while to acclimate, odds are that everyone will be more than understanding.
During my bench trial, while I was cross-examining a witness, my Great Dane rescue, Wanda, decided to start barking at the neighbor; this went on for 60 seconds before I had to excuse myself to quiet her. While you should take every precaution that you can to minimize interruptions and distractions, we all understand that dogs will bark, babies will cry, and doorbells will ring. The chance hiccup, technical or otherwise, will not draw the ire of the court and will not prevent you from effectively representing your client.
Richard D. Rivera is an associate with Smith, Gambrell & Russell, LLP in Jacksonville, Florida.
Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).