One last tip…always wear business appropriate bottoms, or at least be prepared to laugh at yourself when you make a gaffe (because you will).
Welcome back! Today, we present Part II of “Zoom Trials,” a Q & A with Kristin Vivo and Mark Osherow. They discuss the pros and cons of Zoom trials, specifically the one in which they participated.
Kristin Vivo: Mark, what did you think were the cons of having a nonjury trial via Zoom?
Mark Osherow: It was hard to appreciate a witness’s reaction to certain questions making the process impersonal at times. I also found it harder to confront witness on the stand, as the platform creates a barrier that is not there in a “live” trial. But overall working with Zoom has a lot more positives than negatives. Working with exhibits and presentations and having the participants focus on what is right in front of them is facilitated. The platform also makes it easier in a business case to address specific language contained in a document as highlighting particular language and directing the court or a witness to particular section of a document is easy and the platform facilitates this interaction very well. Zoom also facilitates document comparisons and working with multiple documents at one time. You can tab between open documents in Adobe Acrobat and also set up the screen view to look at documents side-by-side and then also open another document that might be significant right alongside or over those documents. You can go back to the other documents with a simple click. This requires some training and practice. But this is amazing functionality. Practice with it and learn how to do these things in advance. As much as we tried, since this was our first Zoom trial, we had absorbed as much as possible in advance, but were continuing to learn while the trial was ongoing. At the beginning I did not know how to show side-by-side documents. But I learned; I watched a lot of videos in the evenings, to become more proficient. However, that proficiency might have become a bit zealous at times (think: like a virtual break-dance with the exhibits).
Kristin Vivo: What do you mean impersonal? Their face was in the camera and so was yours?
Mark Osherow: Yes, that is true, but for the witnesses, my concern was that the “intimidation” of the courtroom and the judge right there was not present. I am not sure this was a major factor, but it is indeed a concern.
Kristin Vivo: I did not like the “IT issues” that may occur with difficult witnesses during depositions and trials. It has happened to me on more than one occasion that a difficult witness said he/she could not hear the question or was having IT issues. It is difficult to access if they are being truthful or simply trying to avoid a difficult question. Our trials and depositions in this matter, had an extra wrinkle in it because we had several witnesses that did not speak English, so we had to work with an interpreter. When these IT issues occurred, I found it helpful to ask the court reporter to repeat my last question, ask the interpreter to interpret it, then have the witness respond.
Mark Osherow: This is all true but in the end the benefits are immense. We had witnesses and parties from other countries who were able to actively participate from the comfort of their own office or home. Most clients would prefer to testify via Zoom at home or from an office than in a courtroom. We did not have to leave home and stay in Miami for seven days either.
Kristin Vivo: Very true! What else did you find to be a downfall?
Mark Osherow: At times, I did not like the air of informality that a Zoom trial may seem to imply. The seriousness, level of professionalism, and candor necessary to try a case can be difficult to maintain in a Zoom setting. As you recall some witnesses attempted to testify from a car and several did not even show up on time. In a live trial, this may or may not have happened, but it seemed that some of the witnesses may have not taken their obligations quite as seriously as if they were actually going to the courthouse. The court enforced decorum throughout and was quite facilitative in addressing the needs of the platform and keeping things moving at a good pace. Counsel for all parties were professional throughout the proceeding and worked closely to schedule witnesses, and agree to admission of exhibits, without making unnecessary technical objections that saved everyone time and avoided addressing unnecessary issues with the court in most instances. But it is important to create a good record even when you believe the court will admit something you may not agree with.
Kristin Vivo: I agree. The seriousness was not seemingly comprehended by some of the participants.
Kristin Vivo: How did you feel the exhibits part of the trial went?
Mark Osherow: Well, the level of preparation with exhibits was generally also much higher than for a live trial (although I do prepare electronic exhibits of all my trial cases). In a Zoom trial you have to know exactly what exhibits will be used with each witness, because you have to have those exhibits accessible on your laptop’s desktop. While preplanning is always critical, there was an added level with a Zoom trial. You need to know how you are going to weave the exhibits together with the witnesses, at an enhanced level than at an in-person trial. This takes some getting used to in a virtual format. During a live trial I have folders with exhibits that I am going to use and can chose to introduce them into evidence or not as the trial proceeds. With the virtual format, the sense was that we had to have our game plan a step further ahead than in a live trial. While it may seem that the two should be the same, in practice, this aspect requires an added level of preparation for a virtual format like Zoom, at least for me. Each of us will need to assess how our personal preparation works best for presenting virtually.
Kristin Vivo: As a young(ish) whippersnapper, I am used to digital exhibits but someone who has been practicing since before the Internet, such as yourself, is used to paper exhibits and binders.
Mark Osherow: That is true. But it is critical that all of us adjust and adapt to a technological world. I have tried to do that throughout my career and will continue to do so. There is a steep learning curve to get beyond the basics, but it is well worth it. The ability to present at a higher level than you have ever done before is enhanced by virtual formats such as Zoom and Microsoft Teams, among others. Using presentation software such as PowerPoint, Prezi, Google Slides, and others, through a platform such as Zoom can really enhance your presentation skills and ability. It is like a virtual teleprompter. So, you have what you need right in front of you for the participants to see and absorb but you do not have to stay right on script. You have a lot of flexibility with presenting. And you can easily zoom in (pun intended) on material in your presentations that are significant. (Use the wheel on your external mouse to do that – I recommend you use one and not the pad on your laptop – although that can come in handy as well). Also, try experimenting with the touch screen features on your laptop if you have them. I have not yet mastered this technique, but it may yield some great results.
Kristin Vivo: What about the element of surprise? As you recall we had to not only provide opposing counsel with all exhibits we planned to use at trial, we also had to provide them to the clerk. In this case the element of surprise was not necessary to be successful because the case relied heavily on documents. How would it have been different if an element of surprise was necessary?
Mark Osherow: Judges tend to frown on surprise. And the rules require disclosure. But there is an added level of disclosure in a virtual trial. We shared all of our exhibits via Dropbox. There are many platforms for sharing documents with opposing counsel. Sometimes the element of surprise is there particularly with rebuttal matters. That can be complicated in a Zoom trial. The best course may be to have those exhibits at the ready and be prepared to deliver them to the clerk immediately after the testimony via a flash (thumb) drive, or via email at that moment to the parties and the court. Ask the court and the clerk how that should be handled in advance. You do not want to be in a situation where the court refuses to allow an exhibit on the basis that it was not provided to the clerk as required in advance of the trial. If it really is an impeachment exhibit, the best course is to handle this may be as a hypothetical well in advance of the trial.
Kristin Vivo: How do you think it went with the evidence portion of the trial?
Mark Osherow: It actually went as well or better than a live trial because the exhibits were admitted in a very orderly fashion, ultimately. It did take some time for the clerk to agree on a chain of custody protocol given the number of exhibits from each side. Make sure you work closely with the clerk and the court to follow their instructions. Remember there may be a learning curve on both ends and the technological issues are not always clear. But do resist submitting everything in paper format where the case is complex and the exhibits are thousands of pages, many of which may not ultimately be admitted. Of course, honor the instructions you are given. But we were able to overcome all of these issues and submit the exhibits electronically. Think of ways to resolve issues that facilitate what everyone involved is seeking to accomplish. Let us not go backwards.
Streamline your exhibits and your case for trial. This is always critical and more so under this format.
Mark Osherow: Kristin, what do you think the pros of having a nonjury trial via Zoom were?
Kristin Vivo: Aside from the fact that I got to wear sneakers (which may also be a con because I looked like one of the characters from “Working Girl”), I enjoyed the comradery and collaboration not normally present during a live trial. For example, we could comment as the trial went along, out loud, to each other (being mindful that our microphones were on mute!) rather than attempting to whisper or pass notes as necessary during a live trial. It was also helpful to be able to write questions on a piece of paper and hold them up for you to see if you missed an issue I wanted you to cover something further in your line of questioning.
Mark Osherow: I have to work harder at remembering to mute my microphone. Working with the court reporter was seamless. At times there were some technical difficulties involving audio quality but those were resolved. What else did you enjoy?
Kristin Vivo: I also enjoyed being able to have fellow attorney colleagues observe the trial. This was one of the first Zoom non-jury trials in Miami-Dade County and several of my colleagues were curious about the particularities of e-trial procedures. If this was a live trial, we would never have had five colleagues in person at trial observing. The support was wonderful, and I am grateful for the opportunity to be able to share my passion during a trial with them!
Mark Osherow: I agree. Kristin, can you discuss the objection process throughout trial? Did you have a hard time making your objections heard? What was the significant difference between making objections during a live trial versus a Zoom trial?
Kristin Vivo: I did not have a problem with my objections being heard. It can be a little cumbersome to mute and unmute on a Mac, but I know on PCs you can use the spacebar to easily toggle the mic on and off (even though in all other aspects it is superior to your HP, Mark!). I know your objections were twice as fast using that trick.
Mark Osherow: What can I say, I am a trial tech nerd.
Kristin Vivo: I did not have a hard time making my objections heard. First of all, the court and all attorneys present were very attentive. If any of our lips were moving while we were on mute one of the attorneys present or the judge would stop and ask if the attorney speaking on mute had an objection. I think we also had more time than normal to object because if we did not unmute in time to object we still had to wait for the interpreter to finish before the witness answered. We could object as the interpreter was speaking. I did not find there to be a significant difference between making objections live versus via Zoom.
Mark Osherow: The court handled the objections well, with reasonable flexibility given the format, without a jury. I do think there are going to be additional considerations and issues to work through for jury trials. But most of those should be resolvable. The platform is not perfect (in terms of replicating the human world of interaction) but does offer a lot of flexibility and really enables us as litigators to accomplish our goals. In addition to routine non-evidentiary matters, while Zoom and other platforms of this nature may not be the perfect solution for every trial, there are many matters, including lengthy evidentiary hearings and trials that can—and should—be effectively handled virtually. It was great to work on one of the first full trials on Zoom in Florida, and while we were not necessarily making history, all of us felt we were contributing to bringing the use of virtual platforms beyond being an experiment for conducting extensive evidentiary hearings and multi-day trials in Florida’s courts.
Whether we like them or not, Zoom hearings and trials in some form or another are likely here to stay; they provide an efficient and cost-effective solution to trial. As such attorneys need to adapt their methods to be effective. And one last tip…always wear business appropriate bottoms, or at least be prepared to laugh at yourself when you make a gaffe (because you will).
Thank you again to Kristin and Mark for allowing us to share this with you!