Remote trials represent a new frontier for most attorneys. As courthouses across the country cope with the COVID-19 pandemic, many are offering the option of a remote trial. One federal judge even ordered a remote jury trial over the objections of the defendant in the case.
In this week’s blog, we interview Joe Grube from Breneman Grube Orehoski, PLLC in Seattle, Washington. Joe recently finished up a remote bench trial and shared his experience with us.
How would you describe the overall experience of a Zoom trial?
Overall, I would say it was good. There are many formalities of a courtroom that get in the way of a smooth presentation, and for the most part the Court didn’t get hung up on those. I think a Zoom trial was definitely less expensive for my client than a similar trial would have been in a traditional format.
What were some of the issues you ran into that you did not anticipate, if any?
In the beginning, we had some connection issues that resulted in difficulties being seen and heard requiring a repeat of some testimony. We had one technical issue in playing a recorded perpetuation deposition, but the Court was patient and we resolved it. Overall those issues were minor.
What, if any, were the biggest difficulties you ran into?
One lay witness did not have Zoom on his phone or home computer (or at least he was going to make no effort to download it). Luckily, the Court allowed him to appear by telephone. Otherwise, I can’t really identify any big difficulties. Any trial, including a traditional trial, in my experience, presents issues that require quick adaptation. When you are adapting from your office rather than a courtroom, you actually have more resources and opportunities.
What, if anything, did you like about remotely trying the case?
I loved the fact that witnesses were not inconvenienced, as I could text them merely minutes before they needed to appear, rather than having them sit on a wooden bench in a hallway for hours. This made witness availability much easier – unlike a traditional courtroom trial.
Was there anything that you expected to be a problem that ended up going better than you thought?
I thought the viewing of exhibits would be more cumbersome, but we all adapted to a method of screen sharing (with the Court’s permission) that actually made it smooth.
Can you tell us what technology you used for your set-up?
I used a DSLR camera with a 4K output and capture card, and supplemental lighting (Lume Cubes) and a Mac laptop. This provides “YouTube” quality video.
In hindsight, is there anything you would change about your technology set-up?
Yes. I would hardwire my laptop into our offices ethernet/internet. This was an issue with respect to connection because the data being transmitted is so much more dense.
You tried this case with your partner, Karen Orehoski. Some attorneys have wondered whether attorneys on the same side should conduct trial together in a conference room or separately in their own offices. Do you have any thoughts on this?
I do. We were both in our separate offices, and found that it was not as smooth as when we are in a courtroom together. As a trial team there is something irreplaceable about being together. We were able to communicate during testimony with text and email, but it didn’t have the same feel. For our next trial we are going to try to explore being in the same room (with separate cameras and microphones, of course), to compare.
Was there anything about trying the case remotely that you feel made your efforts to persuade more difficult, whether it is something like making emotional appeals or the impact of a good, in-person cross examination?
It is hard to say. There is a comfort in being in your own office with access to every document and piece of information you may need to unexpectedly access, so that is a good thing. But it is hard to read a judge while they are on a limited view camera – especially when they are wearing a mask – so the feedback we naturally take was not there.
Was there anything you had to change about how you questioned witnesses?
Not really. I felt the witnesses at this point in the pandemic (except one) were all familiar with video conferencing, so the experience was pretty smooth.
How did each side handle exhibits during the trial that you used with witnesses and in opening and closing?
Exhibits were uploaded to a Fileshare folder pretrial, and then all the parties could access them that way. When they were being put in front of the Court or a witness, it was as easy as screen sharing. The Court still required original depositions be opened and published in the actual courtroom, so that was something that slowed the process down a little.
Having been through this experience, what advice would you give to other attorneys who might be facing their first Zoom trials in the upcoming months?
Although a Zoom trial is not what any of us envisioned when we went to law school and imagined being trial lawyers, at its core it is still just a process for getting at the truth. I think for many attorneys – especially those who feel intimidated or nervous about the formalities they experience in a courtroom – this can be a good opportunity to try a case without that distraction or nervousness. Ultimately, attorneys present facts and argue the law to a decision maker. Even though a Zoom trial looks different, it boils down to that.
