We are embarking on a bold new adventure: a maritime personal injury bench trial in Federal Court, entirely by Zoom. This is not the first such court proceeding, bench trial, or even jury trial by Zoom, but it is a first for our firm. As businesses throughout our Country struggle to return to operation, so does our court system. Hearings and trials have typically been in-person affairs. Not any more, at least for the near-term, given the risks and concerns caused by the Coronavirus pandemic. Certainly a bench or judge-only trial, seemingly lends itself more readily to remote presentation. A Texas judge conducting the first jury trial by Zoom has noted several challenges, which we will not experience, including one of the jurors disappearing from his/her Zoom video box to respond to a child or pet and having to halt the proceedings until they returned. Still, there are a number of challenges which we will face, both real and imagined, as we embark into yet another aspect of the “new normal.”
In our trial, the presiding U.S. District Court Judge will presumably be in his chambers in downtown Miami, Florida. We will be in our offices in Coconut Grove, a representative of our client will be at her home in Miami Beach, and the opposing party will be at her home in Canada, together with her husband who is a witness. Two medical experts will be at their offices in Fort Lauderdale and Miami Beach, and two liability experts will be at their offices in Connecticut and Riverview, Florida. The right to confront witnesses, enshrined in the Sixth Amendment to the Constitution, often portrayed on TV by a lawyer “getting in the face” of the witness, will now take place via video. It is hard to imagine this being as effective as in person cross-examination.
Other practical considerations and concerns may include:
Rule of Sequestration
Often referred to by trial lawyers as “the Rule,” either party may ask that witnesses in the case be excluded from the courtroom during other witnesses’ testimony so that they will not potentially “shade” their own testimony. In the courthouse, this is accomplished by the judge instructing all witnesses in the courtroom that they are not allowed to be present when other witnesses are testifying and is enforced by the Bailiff. Our Zoom trial is public and our virtual courtroom is remotely accessible online to anyone who wishes to watch. Although participants have their name shown after entering the digital meeting, there is nothing to stop a user from falsifying the name that is displayed. Assuming the Rule is invoked, it is unclear how enforcement will occur should a witness attempt to observe trial surreptitiously.
Typically, exhibits are marked and introduced in open court. They are often handed to witnesses during their testimony. We have electronically filed our exhibits in advance and will present them to witnesses electronically, online via Zoom. At the conclusion of trial, exhibits admitted into evidence will be filed so that we have a complete record in the event of appeal or otherwise. In person use of exhibits varies trial to trial and lawyer to lawyer. Often these are “gotcha” moments, the impact of which via Zoom remains to be seen.
When a witness does not recall an important fact, he or she can be shown pretty much anything in an effort to refresh their recollection. The trier of fact (in this case the Judge) is not typically permitted to see what is shown to the witness, especially if it is otherwise inadmissible. On Zoom, however, “showing” a witness anything is an open affair. While less of a concern in a bench trial, this nevertheless presents a logistical challenge, which would be especially difficult in a jury trial.
While technologies such as Zoom have great potential, there are some drawbacks in comparison to a “live” in-person trial. Connection speeds and audio quality can vary, and pacing of examinations and presentations can be slowed from what they would be in a courtroom.
No doubt these and any other logistical issues will be overcome. Our Judge has advised that this is his first trial by Zoom as well. We will all learn (a/k/a “muddle through”) together, and whatever the challenges, they will apply equally to both sides and the Court as well.
As with any trial, at the conclusion, the lawyers will make closing arguments. Typically, we use exhibits and other evidence as part of our presentation and argument. Often, the arguments are spirited and (hopefully) compelling. One cannot help but wonder the difference making an impassioned closing argument sitting in your office as opposed to standing in a courtroom. We will all rise to the challenge and justice will be served in the end. With more and more businesses “going remote” and all of us having to adapt – even trial lawyers, judges and jurors will have to work and learn together as we enter this brave new world.