Last week I was in federal court cross-examining a witness about strawberry shortbread. Only, I wasn’t in the courthouse, and neither was the judge. The witness was my law partner, Michelle, and I wasn’t wearing pants.
We were doing a practice run for a trial where everyone is participating via Zoom videoconference because of the COVID pandemic. Judge Edward Chen invited all counsel to try out the court’s videoconference system to ensure that the trial would go smoothly. The judge appeared for the practice run with a nifty Zoom virtual background that replicated his courtroom, along with the court reporter and clerk, in their respective remote locations. Opposing counsel dialed in from their conference room in Irvine, and my trial team assembled with appropriate distancing at our San Francisco office.
Because we did not want to preview the actual trial testimony, the practice run cross-examination consisted of me interrogating my partner Michelle about a strawberry shortbread recipe. When Michelle couldn’t remember the ingredients, we used Zoom’s “share screen” function to show her the recipe in order to refresh her recollection. Then we practiced integrating Zoom with our trial presentation software (OnCue) to show trial exhibits and play deposition video clips. It wasn’t perfect, but it was smooth enough to satisfy ourselves and Judge Chen that we could pull this off.
A Zoom trial was not what I had in mind when we filed this case. We represent the former Chief Financial Officer of a public company in a dispute over a significant severance payment, and we were looking forward to presenting the case to a jury. In September 2019, the court set a jury trial to begin June 22, 2020. At that time, we had no clue how much the world—and jury trials—would be upended by COVID-19.
By March 16, 2020, California and San Francisco had issued “shelter-in-place” orders due to the pandemic. The U.S. District Court for the Northern District of California (where the trial is set) canceled trials through May 1. At an April 23 case management conference held via Zoom, Judge Chen confirmed that a jury trial in June was out of the question, but that the case could proceed as scheduled as a bench trial, either by videoconference or in person if public health guidance and the court’s orders at the time allowed it.
As counsel for the plaintiff, I had to make the agonizing decision: give up the jury or potentially delay the trial by several months or longer? After conferring with our client, we waived the jury trial and opted to have the case decided by the judge.
At the final pretrial conference in late May, it was clear that an in-person bench trial would not be possible, and if we wanted to move forward with our scheduled June trial, it would have to be by videoconference. If we surrendered the trial date, rescheduling for an in-person bench trial could take months. After another quick conference with our client, we decided to move forward with the Zoom trial in June.
Then came the fun part: preparing to do an entire trial via videoconference. Our staff worked extra hard to make sure that the electronic trial exhibits were as clear as possible and available to the court via a document sharing platform compliant with the court’s security requirements. We loaded exhibits, deposition video excerpts, and impeachment clips into the trial presentation software and began doing Zoom practice sessions with the trial team, making sure that we could smoothly move from live witness testimony to document exhibits to demonstrative exhibits to video clips. I also scheduled Zoom sessions with our client (who is in Colorado) so that he could get comfortable with the videoconference version of the direct exam.
We learned a lot. For example, while it was preferable to have my colleague running the trial presentation software in the same room where I was doing the witness examination, having two devices on the same Zoom call in one room created audio feedback unless one of us was muted. Since constantly muting and unmuting was interrupting the flow of the trial presentation, we decided to separate everyone into different rooms.
I also learned that my trial presentation was much more polished if I was standing up instead of sitting at my desk. So I bought a standing desk extension for my desktop. I also invested in an external camera and microphone to improve the sound and video quality. We adjusted the lighting and made sure the background looked professional and courtroom-like.
The need to look professional, however, only extended a little past my shoulders. So I wore a suit coat and tie in camera range, but shorts and sneakers below. It felt a little odd to be appearing before Judge Chen without pants, but definitely more comfortable.
Based on the strawberry shortbread practice session, I am confident that we are ready to try this case next week via Zoom. The ability to get cases to trial is critical to our clients and as an incentive for settlement. Videoconference technology is giving us the ability to take cases to trial during the pandemic.
However, not every case is appropriate for a Zoom trial. For example, we represent a young woman in a sexual assault case against a venture capitalist; that case was set for trial in Santa Clara county in April 2020 and was postponed indefinitely due to that court’s closure. I cannot imagine depriving our client of the opportunity to tell her story to a jury in that case. However, given the extraordinary backlog of jury trials and the time it may take to get a civil case to a jury trial with social distancing precautions, the option of a Zoom trial will in some cases be the right choice. And for a while, it may be the only choice.
-David Lowe
