Good News, Bad News
As some of you already know, civil trials and in-person proceedings have been suspended in certain jurisdictions as the Delta variant surges across the United States.
Read More: Vaccinations, Renewed Caution at Circuit Courts as Delta Spreads
But there’s some good news.
Nearly 18 months after the first confirmed U.S. case of Covid-19, courts and courtroom advocates seem to have a pretty good sense of what they’re doing in remote proceedings. Some lawyers even like it.
After trying the same case both ways—once in person and then again via Zoom—Gordon Reese Scully Mansukhani LLP attorneys Chad Shultz and Sarah Turner are true believers.
The twice-tried case involved employment discrimination claims against Georgia-Pacific Gypsum in the Western District of Washington. After the jury was unable to reach a verdict the first time in 2019, Judge Ronald B. Leighton declared a mistrial.
A new trial was scheduled for February 2020 but was postponed as a result of the pandemic. It wasn’t until Leighton retired and Judge Barbara J. Rothstein took over that the parties were advised that they would be moving forward with their jury trial via Zoom.
The second time around, following a six-day trial in July, the jury found in favor of Georgia-Pacific on all of the plaintiff’s claims.
Same Old Ballgame
“We had some concern and skepticism at the outset. New things are always a little bit scary,” Shultz said.
Turner and Shultz said they considered objecting but ultimately decided it wouldn’t accomplish anything.
It seemed like “a whole new world,” but “at the end, it’s still a trial,” and “the stakes are still the same,” Shultz said.
Neither adjusted their trial styles and, although they made some minor adjustments to their strategy, they didn’t have to change much to accommodate the virtual format beyond consciously limiting the number of exhibits they relied upon.
They also used a PowerPoint presentation for the first time in the second trial.
The goal was to simplify everything as much as possible and to keep the case moving, Shultz said.
To that end, both sides identified exhibits for each witness early on, so they could make sure those exhibits were before those witnesses.
It also helped to narrow the preparation, Turner said, and to streamline the presentation.
The Jury
Shultz and Turner were concerned—needlessly, as it turned out—that jurors would have a difficult time staying focused while tuning in from their homes.
Jurors appeared unexpectedly engaged, at least based on their facial expressions, Turner said.
“We had two jurors with their faces right up to the screen at times,” she said.
Indeed, this was among the advantages Turner and Shultz cited: getting up close and personal.
“You get feedback immediately,” Turner said, “they’re interested in this, they don’t care so much about that.”
And beyond gauging their reactions, Turner felt she was able to glean something about the jurors based on the space around them: a woodworker with his projects, a young gamer sporting professional headphones.
“It was a really different and interesting perspective,” Turner said.
Efficiency
Another, perhaps more obvious, advantage is reduced cost.
Turner was the only person on their cross-country team who traveled for the virtual trial, and the only equipment they needed was a laptop, a tablet, and a faux library backdrop.
According to Shultz, it all worked seamlessly.
It was also easier to pass notes. The remote format facilitates real-time communication with members of your team, Turner said. This can be helpful where, for example, a juror’s screen has momentarily frozen and you need to pause, or you can’t seem to find the exhibit you’re looking for.
It’s also a great opportunity to educate attorneys and the public about judicial proceedings.
Both partners and associates from Gordon Reese tuned in to watch, providing an educational opportunity for junior attorneys who want to see how it’s done and for seasoned attorneys who want to see how someone else does it.
New Normal
“The genie is out of the bottle,” Turner said.
We have proof of concept: Civil jury trials can indeed be conducted remotely, efficiently, and effectively.
As the pandemic continues to rage—and even when its through—courts with languishing dockets will have little choice but to embrace virtual proceedings if they’re going to move things along quickly, Shultz said.
But perhaps that’s ultimately a good thing.
“Go ahead and embrace it. There are some real positives in this,” Shultz said.
