Trial Meets Tech: Lessons From a Zoom Trial

Trial is the super bowl of litigation. Exhilarating and often stressful, trial represents the culmination of long hours spent in depositions, tedious months and years of gathering evidence and testimony, and second guessing the merits and pitfalls of a case. Trial is what all trial lawyers looks forward to when they start a case.

Unfortunately, almost no one could have anticipated the need to try cases via Zoom or videoconferencing. If they talked about it in law school, I must have been absent that day. In both state and federal courtrooms across the country, videoconferencing technology such as Zoom has made it possible for courts to continue holding civil jury trials when COVID-19 made it difficult for people to gather in groups. While seemingly complex, trial via Zoom is actually quite simple. It requires all participants (jurors, attorneys, parties, court staff) to have internet access through a device equipped with a camera and basic audio and a microphone. Though the technology is generally easy to use, Zoom trials add another layer of concern for lawyers preparing for trial.

I recently completed my first Zoom trial. While I spent many sleepless nights worrying about the usual trial concerns–what I was going to ask this witness, how I was going to impeach that expert, or what the look juror number X made when my client testified meant—I also lost a significant amount of sleep worrying about technology failures, and how do to deal with them when they occurred. Fortunately, these latter concerns never manifested. For the most part, most of my anxiety toward a zoom trial was overblown. But there are a few things I learned along the way that may be helpful to consider for your next zoom trial.

1- Commit To Presenting An Online Presentation

It is tempting to think about a Zoom trial as just another trial that you will present from behind a desk. This is wrong. Unlike an in-person trial, the jury will not have an entire courtroom to distract themselves with during trial. Jurors will be looking at your face or the limited space around you your camera captures for the duration of the trial. So, invest in a good external camera. Do not use the camera on your laptop, which will generally provide a lesser quality video.

Ensure the camera is positioned correctly so that it shows your face, and captures some of your background. How much of “you” you want the jury to see is a matter of personal preference, but be aware that if you have to stand up suddenly, those board shorts that are keeping you cool and comfortable in contrast to the fancier garments you have on up top may suddenly become visible for all to see.

Along with investing in a quality camera, you will need to ensure your microphone and audio connections perform perfectly. I recommend against using headphones because, in my opinion, they are distracting. But if you are going to use them instead of speakers, I recommend avoiding getting tangled in a cord, and using wireless headphones instead. As for a microphone, if anyone has told you during a Zoom deposition they can’t hear you, get an external microphone. I used an external microphone, which worked well. If you do use an external microphone, be sure the volume and gain settings are set to a reasonable level; otherwise, you may find yourself shouting down the judge and witnesses.

Background choice is another important consideration. The Court will generally prohibit use of Zoom backgrounds because they consume a lot of band width, slowing your connection. I presented my client’s case from an office high above Downtown Seattle. A professional office seemed like a safe choice, compared with my home office that frequently had pets, children, and neighbors popping up in the background. An office window background was a good choice was for the most part until the last ten minutes of my closing argument. Unbeknownst to me, it was window washing day. So, just as I was winding up to give the final punch in my closing argument, the window washers dropped down behind me, banging so loudly against the window that I was not sure whether they were actually washing the windows or whether a construction crew was tearing the drywall off the walls in the office next to mine.

2- Prepare For Multiple Panels During Jury Selection

In Washington state courts, attorneys generally have the opportunity to speak to an entire group of prospective jurors all in the same room at the same time. This is not going to happen in a Zoom trial. The jury panel is broken into smaller panels of about 15 prospective jurors per panel. This means you will have less time to ask all of the questions you need to ask to identify the jurors you want to keep and those you have to get rid of.

​The judge in my case gave each attorney 20 minutes per panel. With less time, you will have to be diligent and start to seed your arguments, begin to build credibility with the jury, and get a read on prospective juror attitudes all in a shortened time period. I recommend against spending too introducing yourself, your client and your case, and instead introducing your theme and arguments by building them into your questions posed to the jury panel. Your judge likely will not give you additional time beyond your allotted amount.

3- Exhibits: Share In Advance, Share Often

One of the advantages and disadvantages of a Zoom trial is the lack of surprise exhibits. Unlike a traditional trial, in a Zoom trial, attorneys have to show exhibits to the jury by sharing their screen. And, because you generally cannot publish unadmitted exhibits to the jury until they are admitted, an attorney somehow has to get a copy in the witness’ hand in order to question the witness about the exhibit to lay the foundation for admission. So, you have to make a choice: either ruin your surprise and give the exhibits to opposing counsel before the witness testifies or try to get them into the witness’ hands during cross-examination. For obvious reasons, the latter method is clumsy and cumbersome.

Rather than having to stop cross-examining a witness to email an exhibit to opposing counsel who would then email the exhibit to the witness, and hope the witness could download it, I chose to provide all exhibits to opposing counsel before he called each of his witnesses. Yes, this ruined the surprise. But the witnesses could not deny what was written on the document, so it forced them to admit the facts I needed them to admit.

Also, be prepared for witnesses who do not have the exhibits you sent to opposing counsel. Don’t be afraid to ask them if opposing counsel provided them. Confirm with the witness whether he or she was aware that opposing counsel confirmed he or she would provide the exhibits to the witness. Don’t worry about your cross-exam looking sloppy. The jury will be paying more attention to the fact that this witness does not have these exhibits, wondering what is written in them, and why opposing counsel did not want the witness to see them. This is especially true if one of the exhibits happens to be the witness’ deposition transcript.

4- Jury Deliberation: The Waiting Game

Ask any trial lawyer what her or his least favorite part of trial, and you’ll get the same response: jury deliberation. It is the moment at trial, when the lawyers surrender control of the case to 6 to 12 strangers. Jury deliberations in a civil case can take hours, days, or even weeks.

​In a Zoom trial, there is potential for jurors to draw out deliberations, making that uneasiness linger even longer. Because they are not confined to a jury room at the courthouse, jurors, can take breaks and leave deliberations behind as often as they like. So, be prepared to wait, and find a comfortable spot to do so.  In my trial, the jury deliberated for 4.5 days. However, like the jury, I was free to move about with Zoom on my phone. I chose to wait on the beach.

Like it or not, Zoom trials likely will not be going away anytime soon, at least for certain types of civil cases. Jurors seem to like the convenience of not having to leave home and drive to and from the Courthouse, and the Courts like the efficiency Zoom trials bring to the courtroom. Presenting a case via Zoom requires additional planning beyond normal trial preparation. With a good strategy and thoughtful preparation, however, a case can be tried successfully via Zoom.