How to navigate the use of remote video in nonjury trials

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Welcome to the world of nonjury trials by use of remote video, where the judge, witness, examining lawyer(s), witness’ lawyer, and court reporter are each in separate locations. There may be occasions when the judge and limited staff are in the courtroom, but the parties, counsel, and witnesses are each at separate locations.

As with video remote depositions, remote video nonjury trials are an outgrowth of the pandemic and may be here to stay. They certainly offer the judicial system a valid alternative in appropriate cases, when confronting interminable delays during times when access to the courtroom is limited.

A number of such trials have proceeded around the country and in Maryland.  For example, U.S. District Court Judge Deborah K. Chasanow conducted a three-day video remote nonjury trial in the Southern Division in Greenbelt. U.S. Bankruptcy Judge Nancy V. Alquist conducted a one-day video remote nonjury trial in the Northern Division in Baltimore.

Both judges were pleased with the procedure and the cooperation of counsel and would conduct other such trials, when appropriate. In the trial before Chasanow, the court, and all participants, used Zoom for Government as the platform. Exhibits were premarked, exchanged in advance, and shared on screen.

Some exhibits by agreement were withheld until the witness testified. In Alquist’s trial, the platform was Zoom, and the judge called for premarking and filing of exhibits. In both cases, the public was permitted to listen, and, as is required, the official recording of the trial was by the court.

So how does the remote video nonjury trial work? Numerous courts and organizations have developed guidelines for remote video depositions. One such group is the American College of Trial Lawyers. The College developed Interim Guidelines on Conducting Nonjury Trials by use of Remote Video, published June 1, 2020 by its Task Force on Advocacy in the 21st Century.  Link: https://www.actl.com/docs/default-source/default-document-library/position-statements-and-white-papers/2020—conducting-nonjury-trials-by-use-of-remote-video.pdf?sfvrsn=708f3969_8

(Many of these guidelines are included below.)

It is critical to develop a plan for all important aspects of the trial. The plan should be in writing, developed together by cooperating counsel, and be included in an Order of Court. It should contain all matters to assist in moving forward with a proper and fair trial for the parties and witnesses. Following are some of these matters:

Platform and video manager

Numerous platforms are available, including Zoom, Zoom for Government, WebEx, FaceTime, and BlueJeans. A video manager should be selected and identified.

Undoubtedly, the court might have its own preferences of a video manager. If there are technical problems during the trial, such as a witness or counsel losing contact, hopefully the video manager can come to the rescue. The video manager may well be in the courtroom, if the judge so requests, particularly if the judge is in the courtroom.

Counsel and the video manager should work together to identify issues and resolve them before trial (e.g., issues relating to technology, marking and displaying exhibits with screen-sharing, dealing with a participant losing connection or experiencing other technological problems). Counsel and the video manager should sign on to the video platform before the official court start time to ensure that the technology is working.

Exhibits

Exhibits in the video remote trial should be managed in accordance with court rules, and in accordance with the pretrial order. Exhibits, premarked as appropriate, should be submitted pretrial per specified date, according to custom and practice.

Although it is anticipated that the screen-sharing function of the remote video platform will be used to refer to exhibits during the trial, paper copies of exhibits during trial may also be desired. The creation of an exhibit book is advised to be shared by counsel and the court and should be filed before trial and updated as needed.

If certain exhibits are better used without sharing them in advance (e.g., for cross-examination), there are a number of ways to accomplish this goal. Counsel can share documents with the court reporter, then place them electronically in a lockbox with a password that can be used at a time during a trial recess, before the document(s) are to be shown to the witness. Counsel may need more than one lockbox, if there is more than one “surprise” document.

Alternatively, during the trial, when timely, the exhibits can be uploaded using the in-meeting file transfer feature of the video platform to the court, all counsel, the court reporter, the video manager, and the witness. If large exhibits are used, they can be shared with the court reporter and, of course, opposing counsel in advance per agreement.

Document markups

Many court reporters have specialized video platforms that permit enhanced document markup, X-ray and MRI markup, importation of maps, various recording capabilities, touch display, etc. A discussion about which video platform will be used by the parties may include a discussion of this type of enhanced platform.

Other considerations

• The administration of the oath may, if permissible, include affirmation that the witness will abide by required conduct, such as refraining from identified conduct during the trial.
• Consider whether a witness may send or receive electronic messages relating to the case during trial, or use social media during the trial, as well as communicate generally on social media.
• Agree on if and when the witness may consult with counsel in accordance with applicable rules and ethical requirements.
• Consider arranging for everyone, including witnesses, to keep a phone readily available to receive or generate a telephone call in the event of a technological interruption during the trial.
• Resolve with the court and video manager as to how counsel can obtain portions of the record, if permitted, during and after the trial.
• Resolve issues relating to the need to introduce original documents; the management of using depositions; the schedule of the trial; and the consideration of witnesses who are unsophisticated with technology or are handicapped.
• Also resolve special issues relating to pro se parties, and the appearance of counsel and witnesses on camera. This includes special instructions from the court regarding conduct of witnesses during trial (e.g., not receiving or sending texts while testifying, not consulting any documents or extrinsic sources, etc.).

The particulars discussed here are by no means complete. Each case has its own issues and requirements that need attention. I trust I have alerted you to some of the important ones, and one source to consult. The key to resolving these issues is the high level of professionalism and cooperation for which the Maryland Bar is known.

Paul Mark Sandler, trial lawyer and author, can be reached at [email protected].