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Trial Practice Update – August 2021

A New Vantage Point: Advantages of Virtual Presentations in the Zoom Era

Litigating in the virtual courtroom can present some key advantages when done right.   Although lawyers and litigants look forward to a long-awaited return to physical courthouses, it is apparent that the virtual courthouse may be here to stay.  Some courts have already indicated their willingness to continue virtual operations, or take a hybrid approach to proceedings, even as traditional in-court trials and hearings resume.  After more than a year spent working out the proper protocols, many courts have grown accustomed to the technology, and view virtual proceedings as more productive and efficient than live ones in some circumstances.  See e.g., Message from Chief Judge of the Court of Appeals and the State of New York, Janet DiFiore (Apr. 19, 2021) (“We are drafting a responsible plan that will limit the number of people physically present in our courthouses to safe and responsible levels, and we will do so by relying on the permanent integration of remote technology and virtual appearances to hear those matters not requiring the physical presence of lawyers and litigants in our buildings.”) (emphasis added);  “As Pandemic Lingers, Courts Lean into Virtual Technology” (Feb. 18, 2021) available at https://www.uscourts.gov/news/2021/02/18/pandemic-lingers-courts-lean-virtual-technology (“Video jury trials are a tool that can be used, and it’s a tool we need to use unless we are going to be backed up forever and ever . . . It has worked better than my initial expectations, all the way around.”).   

            In light of the “new normal,” it is important to consider how the virtual courtroom can actually enhance your presentation.  One obvious benefit is that a remote trial or hearing can save significant time and expense by eliminating the need for multiple parties, witnesses, experts, attorneys and/or support staff to travel to one location for a traditional in-person proceeding.  Virtual proceedings may also provide more flexibility to parties when scheduling a hearing or trial and choosing the witnesses who will appear at it.  A less obvious advantage of the virtual courtroom?  The opportunity to visually present your case in a format that may not be feasible in the traditional in-person setting, or may be more effectively presented using remote technology tools.     

            Remote videoconference proceedings may allow a party to focus the court’s attention on key evidence in a way that is simply impossible to do live.  While an attorney ordinarily may be limited to providing hard copy documents or displaying exhibits for the court from a distance, in a virtual proceeding, the court is guaranteed to get an up-close-and-personal view of the evidence via the screen-share function.  During virtual presentations trial graphics can be used even more effectively to engage the trier of fact and to instantly draw the court’s attention to key exhibits, timelines, and legal arguments.  This is especially helpful in cases involving evidence in the form of excel spreadsheets or other complex document compilations, which can be notoriously difficult to present and print in a readable format.  Unlike in the traditional courtroom setting where participants may be flipping through hard copy documents, distracted, or straining to see a screen, an attorney or legal assistant who is familiar with the material can use the screen-sharing function to ensure that everyone is, quite literally, on the same page. 

            In cases involving technical subject matter, such as litigation related to the workings of heavy machinery, complicated technology, or intricate intellectual property and trade secrets, remote proceedings provide parties with an opportunity to present evidence and testimony in a new way.  For example, as was done in a recent virtual arbitration hearing, a virtual proceeding can allow a witness to visually demonstrate how the technology actually works – in real-time – as opposed to merely explaining how it works during the witness’s examination.  The effect of a live demonstration can be extremely powerful.  With the assistance of an on-site camera crew, the witness walks the court through the actual mechanics of the technology, often gaining immense credibility, while also answering questions from the examining attorney and judge.  Of course, be sure to clear demonstratives and presentations with the court pursuant to the applicable rules in your forum. 

            Despite the advantages and convenience of remote proceedings, it is unclear whether the virtual format will continue in the post-pandemic era absent the consent of all parties and the court (for example, it is unclear whether “good cause” will continue to exist to empower courts to order virtual proceedings when the pandemic resolves).  But the takeaway here is this: as litigants continue to navigate the “new normal,” if given the choice between a virtual proceeding or a traditional in-person one, parties should not reflexively assume that in-person presentation is better presentation.  Depending on the nature of the case and proceeding, persuasion may be achieved more effectively from afar.