The Virtual Trial Lawyer

May 13th, 2021

Last month, we – Dylan Jackson and Jeff Sbaih – defended a three-week personal injury case over Zoom. The judge, the jurors, the lawyers, and the witnesses all appeared by Zoom. To the technology novice, the thought of a virtual trial is likely terrifying. To trial lawyers who relish the experience of an in-person trial, a virtual trial is nothing but a deflating experience. However, over the course of our three-week virtual trial, we learned many helpful things and took away some very important feedback from the jurors.

First, virtual trials are not as scary or cumbersome as some may think. Exhibits are available electronically, so recalling exhibits and presenting at trial works seamlessly, provided you have the right software.

Second, jurors seemed to pay more attention to the trial over Zoom. While lawyers always detest seeing a juror nodding off and while there is certainly a concern that jurors might multi-task with other computer screens or devices, for the most part, our jury appeared engaged most of the time. It also helped that the Court allowed a short break about every 90 minutes and the jurors were reminded to allow the lawyers to see their faces and not work on other screens and projects.

Third, you save the wasteful time of having to travel to and from the courthouse and waiting in the dreaded morning-of-trial security line. While trial lawyers do their best to have everything ready ahead of time, let’s be honest.  An extra two hours a day (and not standing in security lines or packing up your bags each night) during trial is a gift.

Finally, the jurors told us at the end of the trial that they actually preferred virtual trials over in-person trials. They liked being able to participate in the civil justice system from the comfort of their homes. They also liked having electronic access to exhibits so they could easily find what they wanted in the documents. Moreover, because they could participate from home, our jury composition was probably a bit more diverse than what we usually see in an in-person trial because some of our more senior jurors, who might otherwise have been stricken for Covid19 health concerns, were able to participate.  One caveat, though, is that the less technologically-apt jurors might unfairly get excluded from jury service if they did not have strong internet connections, a smart phone, or a computer with a camera.  And credit to our judge and her staff, who ran the trial incredibly effectively, both technologically and procedurally.

Overall, not every case may be a right fit for a virtual trial and there are certainly things such as body language that cannot otherwise be observed on a computer screen that one would see in a courtroom.  But in this day and age, where civil trials may not see the inside of a courtroom for quite awhile with a back-up of criminal cases, civil trial lawyers should consider the virtual trial as a positive tool in the process and not necessarily rule it out simply because one is unfamiliar with the process.

With the forgoing in mind, we have a few recommendations for virtual trials:

  1. Spend the time needed to get the right software for handling exhibits and documents. Nothing is worse than trying to present evidence or recall documents that you have difficulty showing.
  2. Spend the money to get the right setup. In our trial, lawyers sat at their desks in front of the computer, which let the trial feel casual and welcoming. However, you still need proper lighting, equipment, and computers.
  3. Make sure all your exhibits are ready to go at least two weeks before your trial starts. The Court will require exhibits to be electronically submitted into the record, and disputes may arise about the exhibits. Having the final set of exhibits worked out two weeks before the trial will help streamline some of those issues.
  4. Test your internet connection. In major metropolitan areas like Seattle, 1 GB internet is readily available. However, you don’t need a connection that fast to ensure a seamless presentation. Based on our research, a connection greater than 24 MBPS will suffice, although the faster the connection, the better (of course).
  5. Always Mute yourself when not talking and resist the urge to comment on what’s happening, even in the confines of your own home. You don’t know when that Mute button didn’t click, and you don’t want to be making any improper comments on the record (or during any proceeding).
  6. Dress up as though you are in court. Resist the urge to wear your sweat pants or track pants because you never know when your camera will be on and you have to stand up. Trial lawyers should still respect the process and maintain the decorum of a trial.  Remember:  Dress for success!

We are scheduled to try several other virtual cases this year and are looking forward to the opportunity to keep our clients’ cases moving towards a resolution until things (hopefully) normalize.  If you or your company are looking for assistance with your virtual trial or are looking for a trial lawyer versed in the ways of this crazy day and age, we would be happy to speak with you.