By Joseph Carlisle
In January 2021, I tried an arbitration case by Zoom. While the five-day arbitration hearing went smoothly, with only a few hiccups, it required an extra amount of planning, preparation, and coordination. All litigators know that, as the trial date nears, time is in short supply. When trying a case by video conference during the tenth month of the COVID-19 pandemic, coordinating such crucial but seemingly mundane things as the delivery of exhibit binders to various witnesses’ homes and attending test runs of the video conference platform itself eats into preparation time. It requires an extra layer of quality control to make sure all your exhibit binders are complete before they are disbursed to the various remote locations of the witnesses. I lost sleep over whether the crucial page of an exhibit would be missing in a witness’ exhibit binder. Fortunately for me, my staff had everything under control.
So, what did it take and how did it go? Advance planning is priority number one. Lawyers are notorious for using every last minute before proceeding, or some would say, notorious for waiting until the last minute. In this new world, there is no such luxury. For example, to allow my staff to organize, label, and coordinate with a third-party vendor to print and create binders for various witnesses and the arbitrator, I had to identify trial exhibits well in advance. I then had to coordinate with witnesses, the arbitrator, and opposing counsel to deliver exhibit binders to each.
It took a great deal of patience. As we have learned, everything takes longer when done remotely. This includes using videoconferencing to prepare witnesses. A key to a good trial presentation is having a strong connection and rapport with your witness, something it is much easier to develop in person. Lacking the ability to review and discuss an exhibit with your client and build up a direct personal rapport, it takes more time to build that connection. Without it, you may lose control over your trial. This is particularly true when you, your witness, the arbitrator, and opposing counsel are all in different locations looking at a small square on a laptop. While there is no substitute for in-person testimony, with the right amount of preparation it is still possible to capture some of the personal connection that is so crucial to credibility determinations.
It took a different level of working collaboratively with opposing counsel. In addition to coordinating delivery of exhibits, we also had to find a virtual host for the five days of the hearing and to address how to conduct the hearing itself. Fortunately, opposing counsel was easy to work with on these issues.
Of course, there were various technical difficulties. On the first day of trial, the camera on my firm’s laptop did not cooperate with Zoom, which pushed me to switch to another laptop. There were issues of feedback from the use of two laptops in the same room, and audio delay when participants had to call in for their audio, which frequently caused counsel and witnesses to talk over each other. One of the key participants suffered a power outage that required them to use their phone’s Wi-Fi hotspot and then to ultimately relocate.
There was the quandary of how to deal with the introduction of rebuttal exhibits. My opposing counsel chose to have his paralegal attend every day of trial to show them on the screen. For my part, since we were sharing the cost of a videoconference host, I chose to email rebuttal exhibits to the virtual host, who then displayed my rebuttal exhibits. To be more accurate, I texted my assistant, who then emailed the exhibits to the host. Opposing counsel also attempted to use standard trial technology to highlight certain exhibits. I am a professed dinosaur in this regard and prefer to rely on hard copies. My impression was that the use of this technology was generally ineffective. The exhibits were difficult to see on a laptop screen (not just for me but for the arbitrator) and the arbitrator seemed to prefer to look at hard copies of the exhibit. In other words, I recommend skipping the technology-based presentations in this format.
I also had to make sure that my witnesses had the correct Zoom link. I had to stay in touch with them regarding when they needed to appear. We had to set up virtual waiting rooms and coordinate with the host to only let in actual witnesses (to avoid being Zoom bombed).
For the first four days of the trial, I chose to set up in a conference room at my firm so I could spread out and not compete with my kids for Wi-Fi signal and bandwidth while they were “in school” by Zoom. On the last day, I worked from home as all of my witnesses had testified and Fridays tend to be light days for my kids. In both instances, I was “in trial” with multiple people every day and yet alone in my own trial bubble. It gave me a new perspective and respect for what our children are experiencing “in school.” My children also have a new perspective on my work. Perhaps the respect will arrive in the future. I share a school/work wall with my oldest child, who commented “Dad, you yell at everyone.”
I was skeptical that a case requiring five days of testimony could be tried effectively by remote means. I was, however, glad to be able to bring this case to a close for my client, as so many cases are languishing due to backlogs and the inability to hold trial in person. Fortunately, my prior experiences with video depositions, remote hearings, and a two-and-half-day administrative hearing held by telephone prepared me for this trial. Overall, things went well. And no one struggled with a stubborn filter causing them to appear as a talking potato or cat (a reference likely to be lost on future readers). With all of this in mind, I still look forward to appearing in person in court and at trial – hopefully someday soon.