The COVID-19 pandemic’s impact continues to send ripples into an ever-evolving court system as the quarantines and lockdowns endure. The early days of the pandemic halted hearings and stayed cases, but after almost a year of at-home practice, many litigators are facing the reality of conducting trials by Zoom. Vaccines may make in-person trials more likely, but do we know when, given talk on the news about new virus variants?
The coronavirus did not create the need for virtual hearings. For years, participants in the litigation process have used communication technology to reduce the inconvenience and expense of travel. Most lawyers are familiar with remote depositions, and incarcerated clients have, at times, used video conferencing software to join a hearing from their detention centers.
The Federal Rules of Civil Procedure reflect a clear preference for live trials in open court: “Every trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom.” Fed. R. Civ. P. 77(b). These Rules, however, also provide for taking a witness’s testimony remotely. Rule 43(a) grants a court the discretion to alter the normal setting of open court for live trials:
At trial, the witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.
Now, during the uncertainty of the pandemic, courts have adopted emergency administrative orders suspending in-person hearings and authorizing videoconferencing in both civil and criminal matters. Clients and their counsel now find themselves choosing between attending a virtual trial via Zoom or postponing a pending case indefinitely.
Across the country, courts are handling the new reality of virtual trials and hearings in a variety of ways. Judges have almost uniformly concluded that they have the authority to order virtual trials, even over the objection of counsel. Andrews v. Autoliv Japan, Ltd., No. 1:14-cv-3432 (N.D. Ga. Jan. 27, 2021) (“…the Court is of the opinion that it has discretion to order a virtual bench trial over Plaintiff’s objection.”). These courts acknowledge both the loss of an opportunity to observe witnesses’ demeanors as well as the forfeit of the ceremony of a trial in a courtroom before live factfinders, but they also recognize the continuing need to resolve longstanding disputes. A Minnesota federal court noted a concern that “[c]ertain features of testimony useful to evaluating credibility and persuasiveness, such as the immediacy of a living person, can be lost with video technology,” but concluded that “advances in technology,” including the “near-instantaneous transmission of video testimony,” lessens these concerns by permitting the court and the attorneys “to see the live witness along with his hesitation, his doubts, his variations of language, his confidence or precipitancy, and his calmness or consideration.” Matter of RFC & RESCAP Liquidating Trust Action, 444 F. Supp. 3d 967, 970 (D. Minn. Mar. 13, 2020). Another court recently came to the same conclusion, deciding that a bench trial via video conference was justified by compelling circumstances and would neither violate the plaintiff’s due process rights nor impair the plaintiff’s ability to convey complex subject matter, despite the potential for technological difficulties. Gould Elecs. Inc. v. Livingston Cnty. Rd. Comm’n, 470 F. Supp. 3d 735 (2020).
Due process concerns are heightened in criminal matters. Criminal defendants hold specific rights, such as the right to confront adverse witnesses and the right to a public trial, that are affected by the transition from live trials to virtual trials. Courts, however, have reasoned that virtual criminal trials satisfy these concerns. In United States v. Donziger, No. 11-CV-691 (LAK), 2020 WL 5152162, at *3 n. 4 (S.D.N.Y. Aug. 31, 2020), the court noted that it had used video technology in several other criminal matters, and it has "proven to be ‘highly-effective’ in allowing viewers to ‘observe the speaker in real-time and visually assess his or her demeanor.'"
Other courts have reached different conclusions, sometimes based on the subject matter of the particular case. One court in Florida expressed significant doubt about the sufficiency of a virtual trial, stating that “[v]irtual proceedings may not be enough for the Court (or jurors) to properly evaluate the witnesses’ credibility).” Fairstein v. Netflix, Inc., No. 220CV00180JLBMRM, 2020 WL 5701767, at *8 (M.D. Fla. Sept. 24, 2020). A federal court in Georgia recently concluded that “there is some language in the Advisory Committee notes to Rule 43 that len[t] support” to the plaintiff’s opposition to a virtual trial. That court chose not to exercise its discretion to force a virtual trial, finding that exercise of discretion was not “appropriate.” Andrews v. Autoliv Japan, Ltd., 1:14-cv-3432-SCJ (N.D. Ga. Jan. 27, 2021).
Not all state courts are as amenable as federal courts to trial by Zoom (some require that jury trials be in-person), but many have adjusted in the face of an ever-increasing judicial backlog. Madelyn Beck, Pandemic Slows Justice in Idaho and Around the Mountain West, National Public Radio (Feb. 2, 2021). Texas’s virtual hearing initiative includes all 3000 of its state court judges, and it held its first civil and criminal virtual trials in May and August of 2020, respectively. Florida followed soon after with its first virtual civil jury trial in August. California has held virtual jury trials, and the New York state court system began doing so in September of 2020. Janna Adelstein, Courts Continue to Adapt to Covid-19, Brennan Center for Justice (September 10, 2020).
Lawyers who have experienced virtual trials point to increased logistical problems. They report shipping thousands of pages of documents to witnesses (as a back-up should electronic display of exhibits fail) and providing witnesses with technological support to prepare testimony over a Zoom hookup. Some complain of connectivity issues and struggles with unfamiliar technology. They also observe that it is much harder to control adverse witnesses during cross-examination as attempts to prevent irrelevant tangents result in lawyers and witnesses simply talking over one another. Other issues include “hot mic” problems; in a virtual trial, often only one lawyer from each side is visible on the Zoom screen, but other lawyers on a trial team might be heard over audio, occasionally leading to awkward, inadvertent disclosures. Virtual hearings are also criticized because arguments are simply less passionate, mundane demonstrations are less compelling, and mid-trial strategizing is difficult and in some cases might be all but impossible.
And, of course, the infamous “kitten lawyer” incident recently made famous on Twitter—in which a lawyer accidentally triggered a Zoom filter that made him appear as a kitten as he argued before the judge and opposing counsel (resulting in him eventually promising everyone in the hearing, “I’m not a cat!”)—illustrates the more ridiculous complications of Zoom trials. @MikaelThalen, Twitter (Feb. 9, 2021 1:35 PM).
Virtual trials are clearly here and are probably not going away any time very soon—courts are not close to returning to business as usual. The complications and Constitutional considerations of virtual trials, however, make it unlikely that they will become normal occurrences after the effects of the pandemic subside. In the meantime, litigators must of course be sure they are proficient in navigating video communication technology (no Kitty Lawyers!) and prepare for cases to move forward, albeit at a distance.
Litigants facing the possibility of a virtual trial must:
- Remember that a judge often has the discretion to order a virtual trial over objections;
- Become familiar with specific problems of presenting documents and evidence over virtual conferencing software;
- Prepare to face difficulty reading witness demeanor and controlling an adverse witness; and
- Look to specific facts and circumstances, case by case, to determine whether a virtual trial or indefinite postponement is in your client’s best interest.