Virtual Trial – The Good, the Bad and the Ugly – by Stephanie L. Quinn

Virtual Trial – The Good, the Bad and the Ugly – by Stephanie L. Quinn

Just when I thought the pandemic was over and we were getting back to “normal”, I started my first virtual jury trial.  This, after three in person COVID trials, two masked and one unmasked.  Questioning witnesses through plexiglass had its downsides, but it still felt like “trial”.

Virtual trial is a whole different animal.  Selecting a jury while scrolling through six screens of 140 tiny faces in boxes is an experience I hope I never have to repeat.  It is nothing like standing at a podium in front of a courtroom full of people or moving around the gallery engaging one on one with prospective jurors.  For one, you are literally face to face with the prospective juror you are questioning, assuming they are using “speaker mode”.  You could be just a little box on their screen if they choose “gallery view”. They could be on their iPhone, making you even smaller.  On the positive side, being right in the prospective jurors’ faces allows you the opportunity to better see their expressions and reactions.  It also required a little bit more makeup than I would normally wear.  When you are several feet away from jurors in a traditional trial, you can more easily hide the fatigue of trial.  The virtual screen is much more revealing.

Technology challenges were one of the worst parts of the virtual trial experience, but luckily, they were short lived.  My co-counsel and I came prepared with a dedicated conference room, a green screen, a webcam with a ring light, and even a makeshift podium made from a milk crate and a piece of scrap wood from my backyard landscaping project.  We researched appropriate virtual backgrounds and ended up creating our own simply by taking photos of artwork in the office where we were renting a conference room.  Our virtual background worked great for our two weeks of pretrial with the judge, but once the prospective jury appeared on week three, it suddenly and unexpectedly malfunctioned and turned my face into a disappearing blob.

As lawyers, we know how to think on our feet. That skill came in handy when we had to play musical computers to find which of our three laptops would show my entire face during voir dire.  Luckily the prospective jurors in the 140 tiny boxes had no idea we were sweating bullets for a couple of minutes until we got one of the computers to work with our virtual background.

Our technology woes disappeared when we decided to lose the green screen and just go with the plain white walls in the conference room as our backgrounds.  White walls are not ideal for Zoom, but we couldn’t put up pictures in the rented conference room, although we did consider using Command Strips to decorate the walls with our own art.  Instead, we brought in color through bright blouses and colored blazers.  Bright blue and coral blazers would never be part of my “in person” courtroom attire, but it worked for virtual trial.  Depending on the jurisdiction, pantyhose may be required courtroom attire, but not in the Zoom courtroom.  Another major plus of the virtual trial.

Preparation is key in the practice of law, but virtual trial takes that concept to the next level.  You cannot just hand a witness his deposition transcript to impeach him on the fly.  Everything has to be prepared in advance and even more calculated than a normal trial.  We used an online platform (Exhibit Share by Veritext) to share exhibits which allowed the witness and the court to preview documents before they were admitted and shown to the jury.  You could move documents into a witness folder and the witness could see it within seconds, almost quicker than taking the time to ask the judge to approach the witness and hand him or her a document in a traditional trial.

The best part about the virtual trial was being able to see my kids and sleep in my own bed every night.  Even if the nights were short because of the normal demands of trial, there is something to be said about being in the same zip code as your family.  I got my fill of hotel food in the 7 consecutive weeks I was out of town in trials in the proceeding months.  Eating at home most nights was a nice treat.

Another downside to a remote jury trial was wasted time while jurors dropped off and had to log back on.  The court clerk was amazingly quick at noticing when a juror disappeared and would notify the judge to stop the proceedings.  Inevitably there was stuff they missed and everyone else had to hear the evidence a second time when they logged back on.  No one is immune from internet issues and technology glitches, and it slowed things down.

Though my virtual jury trial was cut short by a settlement, the experience was complete.  I learned new things, like simultaneous muting and unmuting between my computer and co-counsel’s and how to talk to co-counsel without moving my lips while on mute.  The experience sharpened my virtual lawyering skills.

Those skills were put to the test not long after when I found myself in another virtual trial – this time a court trial.  By then I felt like a Zoom pro, but I still had my fair share of technology woes. But a virtual court trial had fewer moving parts. There was no need to have witnesses preview exhibits or worry about jurors falling off and missing parts of the testimony.  The judge had physical exhibit binders which also made things move much more quickly.

PowerPoint has always been my go-to for closing argument, but I think slide decks are even more effective in a virtual courtroom and more helpful to the attorney.  Without the ability to move around the courtroom or put up oversized poster board exhibits, there is a feeling of being restricted when presenting over a video screen.  It does not feel natural to me and I missed the energy of going up to a podium or walking around the courtroom during closing.  It is hard to engage your audience from the shoulders up.  However, unlike a live presentation on a projection screen or a large TV where the judge or some of the jurors may not have the best view, everyone has a front row seat to a virtual presentation.  Timelines and other demonstratives can very clearly be seen by your audience.  Another plus of the virtual trial.

After my two remote trial experiences, I hope virtual trials are temporary. From the perspective of an attorney who loves to be in the courtroom, it does not deliver the same experience.  I cannot imagine the virtual jury experience is anything close to the real thing.

Even if virtual trials are on their way out, remote court hearings, mediations, settlement conferences and depositions are surely here to stay.  You either love them or you hate them, but they do save the Court, the parties and the attorneys time and money.  Not driving 3 hours each way to Fresno for a mediation no longer upsets me like it did in the early days of COVID when I was dying to get out of town and was skeptical of remote appearances.  I have now participated in a number of effective mediations remotely.  While not every mediation, deposition or court hearing should be done remotely, there is a place for them in the practice of law and I will gladly participate when it makes sense and is beneficial to the client.  The good, the bad, and the ugly of my two remote trials are lessons I will take with me as I navigate this new world of virtual lawyering.

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