Complex Business Litigation in the Time of Covid

Online trials business litigationHow to Participate in an Online Trial or Hearing

Trials are starting again during the pandemic.  Because of the pandemic, courts were closed for months.  Since the wheels of commerce must go on, people needed to learn how to meet online.  So more business is being conducted virtually.  After much delay, cases on court documents began to move.

Our first online trial happened in August of 2020.  It started 20 minutes late.  We were ready on time.  The delay came from technical difficulties experienced by the other parties.  Some parties participated from their homes.  Anyone who does so must have a camera on their computer, as well as a working microphone.  Consider using headphones and ensure that background noise is minimized.

Our first online trial was an arbitration conducted by the American Arbitration Association.  We used Zoom as the online service.  I am not sure that jury trials would be appropriately conducted online but, to date, that issue has not come up at our firm.

This online trial went well for us.  It did not go so well for our opponents.  The arbitrator fell asleep during their cross-examination of one of the witnesses.  He also let slip a comment that reflected his disdain for a line of questioning the respondent’s counsel was pursuing.  

Technical issues were minimal and the parties were cooperative.  There were many documents involved in this case, but the parties were able to provide the documents beforehand to the arbitrator and other parties.  Justice was served in this brave new world.

We learned multiple lessons during our online trial experiences:  

(1) Be patient and flexible.  Things arise online that may be different than in a courtroom.  Most of us are still learning the ins and outs of online transactions.

(2) Watch your facial expressions because you are continuously on camera.  The Respondent’s smirking during opening statements did not serve him well.

(3) Teach all participants how to turn off audio, mute themselves (when not testifying) and stop video of themselves.  If more than one person has audio on, there can be feedback, echoing or other noise that is disturbing to others.

(4) Use two monitors for the counsel and two for the witness.  That way, one monitor can have all parties showing and one can show the document/exhibit.

(5) It is a good practice to provide hardcopies of all exhibits in advance to the judge, opposing counsel and witnesses.

(6) Hire a tech person to help things go smoothly.  Online trials are new territory for most of us, so unusual challenges are likely to arise.  Digital Evidence Group of Washington, D.C., did an excellent job of displaying exhibits on multiple screens and enlarging them when necessary.

(7) Be careful of what you say.  Much more can be picked up, heard and seen by others when gathered online than when in person.  Microphones can be sensitive.  In fact, one of the judge’s comments (which he undoubtedly did not intend anyone to hear) was heard by the litigants.  The comment happened to be critical of the other side’s presentation.  Always leave someone from your team listening to the zoom room during breaks.  Opponents may use this time to endear themselves to the judge/arbitrator.

(8) Keep your mask on if you are not speaking/testifying.  Help to keep others, and yourself, safe.

In short, litigants should not be hesitant to participate in online trials.  They are safer for all of us, and may even serve to reduce more quickly the backlog of cases on our nation’s court dockets.  If you have any questions, feel free to contact one of our attorneys at Pels Law.

 

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