Like many other professions, COVID-19 has impacted the legal world. Many lawyers now work from home and attend important events, like depositions and mediations, through Zoom. However, even before Covid-19, it was not uncommon to attend depositions by telephone or through video conference technology. But we are seeing a new phenomenon – Zoom bench trials.
Recently, I participated in a Zoom bench trial in a Palm Beach Circuit Court case with a good friend and colleague. Because of the Zoom format, there were issues we knew we had to address beforehand. But there were also issues that we did not anticipate. I will discuss a few of the key takeaways from our experience.
Party and Witness Credibility
In all trials, party and witness credibility is vitally important. To assess credibility, you need to be in the same room as the witness. In our bench trial, this was especially true as our case involved allegations of fraud and financial misconduct. Naturally, we were concerned that being behind a computer screen would hurt us. To combat this issue, we spent more time with questions that “humanized” our client. We also explored in depth the defendant’s fraudulent conduct. From our perspective, this approach helped overcome the disadvantage of having our client simply being a face on a computer screen.
Handling and introducing exhibits under normal trial conditions can be stressful and, at times, clumsy. Going into the Zoom bench trial, we knew we had to practice questioning our witnesses with the trial exhibits.
Before trial, we provided our client with a web link that listed the trial exhibits in the same manner and format by which they would access them during the trial. We then practiced our examinations so we could get comfortable accessing and moving from trial exhibit to trial exhibit. At trial, the process went smoothly and without a hitch.
Computer and Technical Issues
At the Zoom bench trial, my colleague and I sat next to each other, no different than our prior bench trials together. Shortly into the Zoom bench trial, we forgot that if one of us was speaking, both microphones on our computers would capture the speaker causing an echo and feedback. After this happened, we recognized the issue and made sure to mute our respective microphones when the other person was speaking.
We also made sure our witnesses were in quiet, non-distracting areas so they could maintain their focus and the Court would be able to hear their testimony without interruption.
Zoom Conference Information
The Court’s trial order encouraged the parties to stipulate to the admissibility of our trial exhibits. However, our opponent did not get back with us concerning the admissibility of certain records, requiring us to issue a subpoena to a records custodian.
Normal trial subpoenas state the location, date, and time the witness must appear at trial. Because it was a Zoom bench trial, we did not have a physical location and so we could not list an address. But complicating matters, we did not have the Zoom conference information – we were waiting on the court reporting service to provide it.
So in our trial subpoena, we requested the records custodian to contact us, and then we would provide the Zoom conference information. Thankfully, we had a cooperative records custodian who stayed in contact. Looking back, the better practice would have been to get the Zoom conference information as early as possible so we could include it in our trial subpoena, and not have to worry about following up with the records custodian.