Courts began accepting, however, that Federal Rule of Civil Procedure 43(a), which requires that testimony occur in “open court,” can be satisfied through video transmission. In fact, many courts recognize that video testimony is effective. See, e.g., FTC v. Swedish Match N. Am., Inc., 197 F.R.D. 1, 2 (D.D.C. 2000) (“[T]here is no practical difference between live testimony and contemporaneous video transmission based upon my experience in presiding over two hearings.”).
Regardless of whether you are a believer in remote trials, your clients will expect you to be prepared. You cannot wait for things to “return to normal,” as that may never occur and certainly will not occur soon. California, for example, recently passed new legislation permitting remote civil trials through mid-2023. Cal. Gov’t Code § 367.75. Today is the new normal. So take a deep breath, think through the issues you will face, and put the following tips to work.
The Importance of Understanding the Plan
Many courts have standing protocols for remote trials; review these and become familiar with them and the technology platforms in use. If possible, speak with other attorneys who have tried cases in that court system or before your trial judge. Most importantly, do not be afraid to ask questions or make suggestions—this process is new for some judges, too.
Understand what “remote” means. For some courts, such as in Illinois, a “remote” trial usually means everyone—judge, lawyers, and witnesses—is remote. For other courts, such as in one recent proceeding in Delaware, a “remote” trial may mean that the judge and lawyers are in the same room, while witnesses appear by video. Do not assume that a “remote” trial will be uniform in every jurisdiction. You may not want to present your entire case remotely only to have your opponent argue its key witnesses should get to testify live.
If the court is going to exclude witnesses from trial, each set of attorneys should instruct their witnesses, in writing, to avoid viewing the trial. At the start of testimony, the court should ask the witnesses to confirm they have not viewed the trial, or the attorneys can do so. Witnesses can access video platforms anonymously or under someone else’s account. Do not assume that, just because you did not recognize their names on the screen, they were not watching the trial.
Limit the number of people visible on the screen during examination. Ideally, it should be the witness, the judge, and the examining and defending attorneys. To avoid distraction, every other camera should be turned off. Rather than relying on video software to constantly switch between active speakers, make sure the witness appears in the largest video box and other participants are pinned on the side. If your trial involves more than two parties, you may need multiple screens.
Avoid “war room” cameras. If you have co-counsel or a trial team, you should each have your own camera. When multiple individuals are visible on one screen, it can be confusing for viewers and court reporters to identify the active speaker.
Finally, discuss with the court what to do in the event of a technology failure. Whoever notices that someone is experiencing an internet issue should immediately speak up, and everyone should stop until the individual can reconnect. Exchange phone numbers for an alternative method of communication. During one recent trial, the lawyers were so focused on the testimony that they did not notice when a court reporter’s internet connection failed. Thankfully, the judge noticed the problem and halted the proceeding temporarily. Ultimately, a different court reporter finished the day’s testimony because the original reporter could not regain access. Technology problems are going to occur, so have a plan for how to handle them and stay calm.
Tips for the Trial Team
Be sure not to overlook the location of your trial team. If everyone is nearby, you can use short breaks to get together and talk in person. If they are in a conference room with you, however, you run the risk of distraction. While everyone is on their best behavior in a live courtroom, people can have a tendency to relax when they are off camera. You do not want your trial team discussing their lunch orders just because they are not on camera.
If multiple attorneys will participate on your side, consider whether to use one “hot” computer for all examinations or whether everyone will use their own computer. Using different computers is fine, so long as everyone remembers to turn off their video and audio (both microphone and speakers) when they are not actively participating. When a witness for whom you are not responsible is testifying, turn your camera off. It proves less distracting to everyone else, and you can take the opportunity (unlike in a courtroom) to use the washroom or stretch your legs.
Before defending a witness, decide whether to keep your microphone on the whole time or unmute it only when speaking. Each comes with risk. If you leave the microphone on, something unintended might be caught by your microphone. If you leave your microphone muted, however, you might forget to unmute or simply fail to click the right button in a rush, when trying to make a critical objection. Make sure your team knows your decision.
Working with multiple screens is great if you are comfortable doing so, but have your witness outline in front of you, either printed or on a tablet. Looking down and then up toward your camera is better visually than looking side to side from one monitor with your outline to another monitor with your camera. You cannot put your outline on your primary monitor because you want to keep an eye on the witnesses, the court, and opposing counsel.
Fight any attempt by your opponent to force your witnesses to travel to any specific location, such as opposing counsel’s law office, to testify. Either each witness should get to testify from the location of his or her choice, or all witnesses should testify from the same neutral location.
Have your own witnesses testify from an office at your law firm, if possible, absent travel or safety concerns. They will perhaps appear more professional and may take their testimony more seriously. You will also have the chance to meaningfully interact with them right up until the moment they take the stand. Of course, you should resist any temptation to interact with them off camera during breaks, but you want to confirm this with the court. See United States v. Sandoval-Mendoza, 472 F.3d 645, 651 (9th Cir. 2006) (“[W]e conclude that trial courts may prohibit all communications between a defendant and his lawyer during a brief recess before or during cross-examination. . . .”). Experts can testify from their own office.
There is an old sports adage to practice how you play, and this is a good rule for witness preparation. Prepare witnesses in the same manner they will testify at trial, which means at least one preparation session using remote technology. This will get them comfortable with the process.
Do not put the witness in a room adjacent to you; there is too much of a chance the witness will hear your voice through the wall and start answering questions immediately, rather than after a slight video delay, making it appear he or she is answering before you finish the question. Make sure the witness understands how to turn off the video and audio during breaks—or understands if that is not permitted.
Witnesses should be alone in the room, and there should not be any notes or documents that might influence their testimony. The court should ask each witness to verify this prior to testimony. If you are concerned, you should ask the witness to move the camera around the room to verify that it is empty. If the witness struggles with using technology, it might be permissible for another individual to be present to assist the witness, but that person should also be on camera and verify that he or she is not otherwise aiding the witness.
Witnesses may need to adjust their camera from what is normal for friend-and-family video chats. This might mean pushing the camera back or moving it up. Check the lighting just as you would for a video deposition. You want bright, but indirect, lighting of the witness.
Many attorneys select expert witnesses based on their ability to get up out of the witness box and interact with exhibits, much like a professor in a classroom. Remote testimony may remove this element from your trial. Make sure your expert is comfortable remaining seated.
Using Electronic Exhibits
Some courts do not permit attorneys to use screensharing to present their exhibits, while other courts are comfortable with that process. Screensharing provides a lot of flexibility, but it means the witness may be more difficult to see because the exhibit being shared will take over the screen. If you are not permitted to screenshare or are not comfortable doing so, you will need to find an alternative to get your exhibits displayed to the witness, your opposing counsel, and the court.
One solution is to use a file-sharing service so everyone can download a complete set of trial exhibits. Each person can then access them on the cloud or save them locally, and examination can proceed with everyone on the same page (“Everyone, open Plaintiff’s Exhibit 17. . . .”). Of course, this might mean that the witness must toggle back and forth between multiple applications, which could pose a problem for some witnesses. If everyone is comfortable working with hard copies and the exhibits are not voluminous, this problem is easily solved.
Another solution is to display the witness on one screen and the exhibit on a second screen. The downside is that some witnesses may not have two screens. Regardless, do not assume every witness has the same size screen you have. Some witnesses may be working on a 13-inch laptop screen (or smaller, if using a tablet) and may struggle to see detail on the exhibits. Have a technology check with witnesses before they testify.
Special attention must be paid to exhibits containing confidential information or trade secrets. You may not want to share these electronically with witnesses in a format that would enable them to save a copy—even if the court orders that the witnesses delete the exhibits after testimony concludes.
If your witnesses can scroll through exhibits directly, remind them to review the entire exhibit for context before answering questions. If someone else controls the exhibits, make sure your witnesses know they can ask for that person to show them more than just the portion visible on the screen. If need be, you can request this on behalf of your witness.
Ask the court for permission to have your expert take control of the platform and share the expert’s screen during testimony. This should help your expert “teach,” use prepared demonstrative exhibits, and explain the pertinent methodology and analysis.
Impeachment poses a unique problem. Documents used solely for impeachment are not typically shared ahead of time, so including them in an electronic download link may spoil your big moment. Confirm with the court how impeachment will be handled. Can you screenshare impeachment exhibits, or do you need to email them to everyone? If the latter, the witness should open the email while on video and resume testifying. You do not want witnesses having a few minutes to think while they “run to the printer.” You can probably share deposition transcripts ahead of time.
Remote trials are not better or worse than traditional in-person trials—they are just different. They present advantages, such as less travel, and disadvantages, such as the inevitable technology snafus and perhaps a little bit less of the courtroom drama we romanticize in our minds. Regardless, they are here to stay, and your clients will expect you to be ready.