How Are Virtual Trials Working, and Are They Here to Stay?
Mark P. Scheer and Joe L. Hogan | CLM
“You’re on mute, your honor.” If Black’s Law Dictionary held a “Phrase of the Year” contest for the last 12 months, that would be our nomination. Like most attorneys with active trial practices, when COVID-19 hit our region, we had a number of cases postured for trial. Unlike most attorneys, fortune and circumstance led us to several “virtual verdicts”—cases tried from voir dire to verdict completely virtually.
After trying one of the first virtual jury trials in the nation, we presented and spoke with local and national bar groups, claims professionals, and groups of judges about our experiences. In doing so, we have a unique perspective on the virtual trial: What it looks like, its pros and cons, and whether it will survive the end of the pandemic.
The Virtual Trial—How Did it Happen?
One of the first virtual jury trials in the country was conducted by Judge Thomas Zilly in the Federal District Court for the Western District of Washington in September 2020. The case had unique factors favoring a virtual trial, including an elderly plaintiff who might not have been able to survive the end of the pandemic for a trial. The case also had many out-of-state experts and witnesses who probably would have testified virtually anyway.
Since then, the Western District of Washington has been a leader in conducting virtual Zoom trials both by bench and by jury. As of July 2021, the Western District has held 26 fully virtual trials, with more than half of them tried with a jury. Some of the reasons cited in favor of virtual trials include the cost and time savings of allowing jurors to sit at home rather than travel to a city (especially for distant counties that are part of the federal district), as well as convenience for court and counsel. All of it was necessitated by COVID-19, of course, but the arguments are advanced for proceeding in this fashion in the future.
State courts in Washington also joined in the experiment. King County, which is home to Seattle and Bellevue, was a leader in setting protocols for virtual jury trials. In December 2020, we participated in one of the first fully virtual jury trials. Every aspect of trial was conducted via videoconference, including jury selection, presentation of evidence and exhibits, closing and deliberations, and entry of verdict. Jurors attended via videoconference from their respective homes. Since then, we have conducted four fully virtual trials under similar circumstances.
Virtual trials have been the subject of much debate, and considerable motions practice. This article is too short to go into the details on the topic of legal challenges to virtual trials, but Federal District Judge Marsha Pechman, in Goldstine v. FedEx Freight, Inc., 2021 U.S. Dist. LEXIS 46478 (W.D. Wa. Mar. 11, 2021), has issued a ruling clarifying the constitutional issues surrounding (and allowing) fully virtual trials. State trial court judges issued similar rulings in favor of holding a virtual trial.
When we speak about virtual trials, the most common question we get is, “Who does it favor—plaintiff or defense?” It is also our favorite question to ask audiences because everyone disagrees, and it always creates a discussion about trial tactics and strategy. If you are looking for our answer, you might be disappointed, since our answer is usually—drumroll please—“it depends.”
In our experience, voir dire is the part of the trial affected most by the virtual format. Of course, we are biased; we believe voir dire is the most important part of trial. In King County, potential jurors were asked to complete a lengthy questionnaire given to counsel in an Excel format the night before voir dire. Potential jurors were broken into groups of 15 to 25. Each panel was then examined separately. This is a huge change from normal practice in which all potential jurors would be examined at once in the courtroom.
In a virtual format, the attorneys essentially repeat their voir dire for each panel—sometimes up to five or six panels—until there are enough qualified jurors from which to select the jury. Jury selection did not take more time than the “normal” method, but it is a decidedly different process. Smart attorneys reacted to each panel by changing their presentation—anticipating the other’s presentation or abandoning a dull line of questions. Jurors seemed less willing to react to each other’s responses, but were no less willing to be candid and open in responses.
Another major difference is presentation of exhibits. All attorneys are becoming proficient at introducing exhibits electronically and virtually in depositions, but it is a very different thing when it comes to a virtual trial. Gone are the days of excellent (and vastly enlarged) demonstrative exhibits, such as blow-ups of testimony and medical records. Instead, we now have pre-marked electronic copies that can be referenced and shown on the screen, and on command (after admission by the judge, of course). This strips much of the theater away from exhibits. Hitting “screen share” is not as dramatic as waiving the report in front of the witness or slamming a heavy stack of records on the table. The upside is that virtual jurors can review exhibits whenever they want, and every juror has electronic access to the exhibits (at least in federal court).
Addressing the Negatives
As for the negatives, there are several—and this list is not exhaustive. Being inclusive to all demographics is a major concern. Some of our objections to virtual trials are that they may disadvantage, and even preclude, those who are less likely to have access to the internet and a web camera.
Yet, this topic is being addressed by the courts. We have heard proposals for loaning iPads to jurors or setting up remote juror rooms at the courthouse or a library. All of this might be a solution in the future. Time will tell if courts can get it right. From our conversations with both federal and state judges, we know that this is one issue that is on the forefront of many jurists’ minds.
Another negative is the loss of the grandeur, gravitas, and “significance” of attending a trial in an actual courthouse, with the solemn and reverent responsibility that goes with that process. Common sense suggests jurors and witnesses might act differently in the marbled halls of a courthouse than when sitting on their couch holding a laptop.
On the other hand, some judges believe that virtual proceedings will be able to deliver justice to those who might otherwise be preempted from a trial due to location, age, finances, or other circumstances. In our minds, there is no question that a virtual proceeding could level the playing field by decreasing the cost of bringing witnesses and parties to a courtroom—especially if the courtroom is far away.
On the positive side, jurors seem to love virtual trials. Many jurors commented that the virtual format helped them manage the difficulty of taking time off for jury duty. We know many jurors “alt-tab’ed” from the virtual trial to work emails as soon as the judge sent them to their virtual jurors’ room. Others used breaks to check in on children who themselves were attending a virtual classroom.
Initially, we were concerned that jurors would drift off or watch Netflix on a second screen (the former is not unheard of, even in live trials). We were pleasantly surprised that this did not occur in our virtual trials. The credit belongs to the judges, who required jurors to have their cameras on and took the added responsibility of monitoring jurors for inattention or napping. The best virtual judges also made sure that no one else was in the room with a juror during a presentation. This helped narrow the gap in formality between a normal and virtual trial.
There are too many other variables to cover all the pros and cons of fully virtual jury trials, but anybody who has tried or watched a trial can easily make a list. Can you tell if someone is telling the truth or lying on screen? Can you do so better or worse than if they are in person, but farther away? Remember, anybody speaking during a virtual trial will “fill up” the screen for the jurors, as they are supposed to be watching in speaker mode, not gallery mode.
From a true trial lawyer’s perspective, virtual trials do not encompass the full theatrical opportunity that an in-person trial affords. Hand gestures are all but gone, and there is no more pacing the courtroom or using the space of a courtroom in a strategic manner for cross-examination. Is this necessarily a bad thing? Trials have evolved constantly over the years, but one thing has stayed the same: True trial attorneys have found ways to use the procedures and circumstances to tell their clients’ stories. A move to virtual trials doesn’t change that.
What Happens Next?
You would not be alone if you thought that ending COVID-19 protocols would see the end of the virtual trial. We believe otherwise. As previously discussed, there are real benefits to jurors. If using a virtual trial increases juror participation, then many jurisdictions will consider it.
Additionally, jurisdictions that have conducted virtual trials have spent resources in the form of time and money to develop the capability. Those jurisdictions may want to reap the benefits of those investments. Clients and claims handlers may enjoy the benefit of attending trials without having to sit in a courtroom (and rely on spotty courthouse Wi-Fi to catch up on emails).
The biggest factor behind virtual trials may have nothing to do with litigation. We now live in a virtual world. Increasingly, everyone is more accustomed to remote work, virtual meetings, and videoconferencing. In the litigation world, virtual depositions, virtual mediations, and virtual hearings have become commonplace. Law can be slow to react to social change; to some extent that is with good reason. But law cannot escape social change forever.
That raises the question: Under what circumstances should courts allow or require virtual trials once the pandemic has ended? Our view has evolved.
First, courts should allow virtual trials where the court has the capacity and where the parties stipulate to the procedure. We envision a spectrum of virtual trials—on one end, only voir dire is held by videoconference; on the other end, the entire trial is held virtually.
Second, we see a role for virtual trials in helping rid overburdened courts by expediting lower-stakes lawsuits. Cases with damages under a certain threshold could be required to be held virtually. If any party disagrees with the result and thinks that they would do better in person, then they could request a second live trial. To encourage acceptance of a virtual verdict, parties who request a live trial but fail to meaningfully improve their positions would face exposure to attorneys’ fees. This proposal would help move cases to trial but also preserve litigants’ perceived right to have their day in court (in person).
One thing is for certain: Some form of virtual trial practice is here to stay. Courts and jurors have embraced the concept, and despite questions regarding fairness, equity, and full demographic participation in virtual trial process, the efficiency factor is undeniable and the need for virtual hearings and trials to clear the backlog of cases seems inevitable. There is also the prospect of some hybrid proceedings—perhaps virtual jury selection but in-person trial, or some combination of both. With time, good trial attorneys will adapt (and judges will learn to remember to unmute themselves).