Litigation in the Days of Zoom

Our partner, Bob Kaplan, tried one of the first mid-pandemic cases earlier this month. His notes regarding the experience follow.

Jury selection was done remotely by Zoom. Jury management had pre-screened the potential jurors and excused those who, for health reasons (among other things) could not serve. Those jurors who were qualified and capable of serving, but who did not have a device capable of downloading the Zoom app, were provided with Chromebooks by the judiciary and also tech support.

Assembling a panel of 40 potential jurors was a labor-intensive task which was completed by jury management before counsel arrived in court.

I was concerned that the jury pool would not be representative of the general community. For instance, would anyone over the age of 60 be willing to serve? To my surprise, the panel was not over/under-represented by young/old, minorities, male/female, professionals/ working class/retirees/ unemployed.

The composition of the jury pool was very similar to pre-pandemic jury pools. All potential jurors could be seen in a gallery view on my laptop and those jurors in the jury box were projected on a screen above the bench. There were some minor technical problems, but the process went smoothly, and we had a jury picked within 4 hours. Those jurors who were not in the box were kept in a waiting area and as jurors were excused for cause or by a peremptory challenge, they were replaced by jurors in the waiting room.

There was a remarkably poignant and optimistic moment when the seven selected jurors, all projected above the bench and all in their kitchens, family rooms or dining rooms raised their right hands and swore to well and truly try the case.

The jurors appeared in court on the day following jury selection. Three jurors were in the jury box and four were in the front row of the gallery. They were provided with clear masks. Counsel wore masks throughout the trial except when we were speaking (opening, closing, cross and direct examination). All participants were socially distanced and an “X” in colored tape, marked the spot where counsel was required to stand while addressing the jury. Plexiglas barriers were fixed in front of the witness stand and counsel table separating counsel from their client with headsets and transmitters provided by the court enabling counsel and client to communicate confidentially.

Both the plaintiff and the defendant testified live. Both could be heard despite the fact that they were wearing masks and behind Plexiglas.

The video depositions of the experts were completed before the trial began and played to the jury. Side bar conferences were conducted the with judge with both counsel and the bench separated by Plexiglas. Significantly, none of these modifications impacted the substantive presentation of the proofs. This trial was no different from the hundreds of other trials in which I have participated. The jury used a large conference room to deliberate instead of a smaller room adjacent to the courtroom and returned a defense verdict after deliberating 20 minutes.