We recently wrote about the pros and cons of the virtual deposition, a mechanism which saw its use burgeon during the pandemic. Epstein Becker & Green’s Managing Director, James P. Flynn, has taken the virtual experience to the next level having recently participated in a virtual bench trial. I asked Jim about his experience, and also received some of his big-picture thoughts on this medium.
Q: Were any aspects of the trial easier, or more streamlined, because it was being conducted virtually?
A: Dealing with individual documents, and going from one document to the next, is very efficient, especially where parties have the foresight to cooperate. We split the cost for a third party document custodian who acted like combined court clerk and trial tech. The tech simply called up noted documents, and could enlarge and highlight on command. This worked well in letting counsel, witnesses, and the court follow along and focus. On the other hand, objections were harder to handle, as we did not have or use a breakout room function. This meant that we did not have any sort of sidebar to resolve objections, and unlike an in-person trial, witnesses could hear our colloquies with the judge.
Q: Even in bench trials, many trial attorneys thrive by being on their feet, actively engaging with the witness they are questioning. That obviously is not an option during a virtual trial. Does the lack of “showmanship” in a virtual trial take away from an attorney’s overall effectiveness?
A: Good trial attorneys adapt to their setting, and find ways to be effective. I don’t think the medium reduces a good attorney’s effectiveness, but I do think that the virtual trial eliminates certain opportunities that trial attorneys have to distinguish themselves from litigators who may not be as experienced, skilled or confident in the trial setting. But, in end, I believe that is a minor, marginal matter. Like in-person trials, the best way to put on a good show is to ask the right question at the right time, especially in a bench trial where you’re going to do a written post trial brief with record citations. In a virtual trial, because you don’t necessarily have to rely on the jurors’ recall of some moment, you can weave your proofs more subtly, and in some sense, the virtual bench trial may let you score points that other side doesn’t realize are going up on scoreboard until it’s too late.
Q: One of the concerns we voiced in our blog about virtual depositions was the inability for a questioner to accurately gauge a witness’s credibility and overall body language from a broadcast over a computer monitor. Is this concern in any way minimized during a virtual bench trial since it is the judge who is making such determinations rather than a jury?
A: You are right on point: In many ways, this is the biggest downside of the virtual trial. This is especially so during examinations when you also have documents on screen—at that point, even the witness’s face is pretty small. On the other hand, in a virtual trial, everybody is right in front of you, and you see everybody’s face simultaneously—the judge, opposing counsel, witness, other side’s client representative. In a court room, the best trial lawyers find ways to have that 360⁰ vision, but in the virtual trial you don’t need those eyes in the back of your head, the head swivel, or that sixth sense because everybody is always in front of you, unlike the courtroom where they are sometimes beside or behind you.
Q: Depending on the nature and complexity of the circumstances at issue, bench trials can be spread out over multiple, non-contiguous sessions, separated by weeks, if not months. Will virtual bench trials in any way promote a more efficient conclusion to the presentation of evidence?
A: For the most part, virtual bench trials are more efficient. There’s no need to physically pass exhibits to a witness, an adversary, and the judge, or to cart them in and out of your car in boxes. And, when there is no need for you or witnesses to travel, you can make trial days or half days easier to schedule despite conflicting and overlapping commitments, so the virtual trial can help shorten the intervening gaps. Yet, the benefit of that efficiency isn’t worth the tradeoffs, as I much prefer to conduct in-person trials. You just can’t replace that emotion and adrenalin that you get in an in-person trial for anybody involved. I once sat in the third row as James Earl Jones played the lead in Othello, and, sorry, but there is no way me, anybody else in the audience, him, the other actors, the director, or the crew would have felt that we had the same experience if we were each in separate boxes for a livestream/Zoom.
Q: Do you see any circumstances where virtual bench trials could be a useful addition to the post-pandemic practice of law?
A: I do. There are some cases, especially those involving commercial contracts, where the issues are narrow but they probably technically present issues of fact precluding summary judgment. When courts and parties only need limited factual testimony, virtual bench trials may just be more efficient on cost, travel, and time basis. As a result, we will learn to live with them—just like we occasionally watch great plays on PBS or Netflix. Those broadcasts don’t replace live theater; rather, they complement it, and sometimes partially sate the desire to experience it until our next chance to sit in a theater for a live performance. During the pandemic, we found ways to experience theater remotely, but everybody is very happy that Broadway has reopened. I feel exactly the same way about trial courts.